CMNT_TITLE_CAS

Discussion by the Committee

• (1) structures and processes for effective tripartite consultation have not been established, with the Government of El Salvador adopting an intentionally passive role, creating an uncertain political climate in terms of development and social progress policies;
• (2) a policy to discredit the ANEP has been implemented with the aim of weakening it as an organization;
• (3) the Government of El Salvador has failed to fulfil its obligation to consult the ANEP as the most representative organization of employers, thereby violating Article 5 of Convention No. 144.

• (1) urgently and as a priority, dedicate all necessary efforts to expedite and conclude all investigations related to the murders of union leaders, so that those responsible, both material and intellectual, are identified but also sanctioned as soon as possible;
• (2) end delays in the issuance of credentials to workers’ organizations;
• (3) ensure that all workers’ organizations enjoy the rights and freedoms established in the Convention and that they are fully included in tripartite consultation and social dialogue;
• (4) reactivate, without delay, the full functioning of the Higher Labour Council and other tripartite bodies;
• (5) adopt without delay all necessary measures to repeal the legal obligation for unions to request the renewal of their legal status every 12 months;
• (6) develop a road map with determined deadlines to promptly implement all the recommendations made by the 2022 High-Level Tripartite Mission of the ILO and the Committee’s recommendations related to the Convention.

• (1) that following prior consultation between independent and representative organizations of employers and workers, it takes measures to ensure the definitive ending of any form of aggression against persons or organizations in relation to the exercise of both lawful trade union activities and the activities of employers’ organizations, their leaders and members, and to prevent this reoccurring in future. It must be guaranteed that there is no repetition of these and other acts of hostility and interference against the ANEP and its members and that the freedom of employers in relation to their organizations is respected. The political role that the Government representative attributes to the ANEP is outside this discussion. If, in the past, there were bodies that were only bipartite, it is a responsibility of the Government and cannot be attributed to trade unions or employers’ organizations. The corresponding claims were undoubtedly put forward at the time. This absolutely does not justify at the present time a representative organization such as the ANEP from being sidelined and ignored.
• (2) immediately provides detailed information indicating the measures adopted to ensure that there is no repetition of these or other acts of hostility and interference and to guarantee respect for the freedom of workers and employers to establish the organizations of their choosing, organize their administration and activities and formulate their programmes without interference by the public authorities and free from the acts of aggression described above;
• (3) directs all its efforts as a priority at facilitating and concluding the investigations into the murders referred to above;
• (4) provides detailed information on the content and progress of the parliamentary examination of the reforms intended to ensure the harmonization of the national legislation with the Convention, including the proposed reform of the Penal Code and the consultation procedures with the social partners in relation to these initiatives and the results achieved; and
• (5) takes the necessary measures to revise the rules applicable to the registration of executive boards to guarantee in the right of organizations to be established and to elect their representatives in full freedom.

Committee’s conclusions

• 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 and issuing credentials to boards of directors to ensure the right of workers’ and employers’ organizations to form and freely elect their representatives;
• 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; and
• send information on the institutional change from INSAFORP to INCAF and ensure that it has a tripartite structure.

CMNT_TITLE_CAS



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

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

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

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

CMNT_TITLE_CAS



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.

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

The Committee notes the comments of the International Trade Union Confederation (ITUC) referring to legislative matters. It requests the Government to send its observations thereon.

The Committee also notes a number of cases currently before the Committee on Freedom of Association.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Exclusion of various categories of workers from the guarantees of the Convention. In its previous comments the Committee referred to sections 4 and 73, second paragraph, of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, under which certain public officials and employees and public sector workers are excluded from the guarantees of the Convention. The Committee understands that the abovementioned provisions of the Civil Service Act have been cancelled following a revision of the Constitution and therefore no longer apply. The Committee requests the Government to send it observations on this matter.

The Committee notes that article 47 of the Constitution of the Republic has been amended by Decree No. 33 of 2009. It observes that article 47 provides that the following shall not have the right of association: members of the judiciary, public servants who have authority to make decisions or hold managerial positions, or are employees with duties of a highly confidential nature, private secretaries of high-ranking officials (article 219 of the Constitution), diplomatic representatives (article 236 of the Constitution), assistants of the Public Prosecutor, or persons serving as assistant employees, assistant prosecutors, labour prosecutors and delegates. The Committee recalls that these public employees should enjoy the right to establish and join organizations of their choosing without prior authorization, and requests the Government to take steps to ensure that full effect is given to the Convention in this respect.

The Committee also recalls that in its previous comments it asked the Government to take the necessary steps to ensure that workers in private security firms enjoy the right to establish or join trade union organizations. The Committee notes the information sent by the Government to the effect that the necessary steps will be taken to grant legal personality to the unions representing these workers. The Committee requests the Government to provide information in its next report on any specific measures taken in this regard.

In its previous comments the Committee noted that section 204 of the Labour Code prohibits membership of more than one union. It notes in this connection the Government’s statement that this provision does not apply to public employees as the Labour Code does not apply to this category of workers and the Civil Service Act lays down no such prohibition. The Committee recalls that workers who are engaged, whether in the public or the private sector, in different activities in more than one job should be able to join the corresponding unions and that in any event, workers should be able, if they so wish, to join unions at the branch level and at the enterprise level at the same time. In these circumstances, the Committee once again asks the Government to take the necessary steps to have section 204 of the Labour Code amended to align it with this principle.

Minimum membership. In its previous comments the Committee noted that section 211 of the Labour Code and section 76 of the Civil Service Act set a requirement of at least 35 workers in order to establish a workers’ organization and section 212 of the Labour Code establishes a requirement of a minimum of seven employers in order to form an employers’ organization. The Committee notes the Government’s statement that it has made the commitment, reflected in a report entitled “The labour dimension in Central America and the Dominican Republic, building on progress: improving performance and building capacity” (known as the White Paper), to reform El Salvador’s labour legislation. The amendment of section 211 of the Labour Code is planned in this context. The Committee hopes that the Government’s commitment will be fulfilled shortly and that the reform will include amendment of section 211 of the Labour Code and section 76 of the Civil Service Act so as to reduce the minimum number of workers needed to establish a trade union organization to 25 members, for instance, given the large proportion of small and medium-sized enterprises in the country, and amendment of section 212 of the Labour Code so as to reduce the minimum number of employers required to form an employers’ organization. The Committee requests the Government to report on all developments in this regard.

Requirements for the acquisition of legal personality. In its previous comments the Committee noted that section 219 of the Labour Code provides that in order for trade unions to be legally constituted, within five days of the documentation being submitted to it, the Ministry of Labour and Social Insurance shall request the employer to certify that the founder members are employees. In its previous comments, the Committee expressed the view that in so far as this involves communicating the names of the members to the employer, this provision may give rise to acts of discrimination against workers wishing to establish a union. The Committee notes the Government’s statement that an audit is to be carried out under ILO auspices with a view to revising the administrative procedures for establishing a trade union to make them smoother and more efficient. The Committee hopes that in following up on the audit, the Government will take the necessary steps to amend section 219 of the Labour Code, for example by establishing that the Ministry of Labour will carry out the certification by checking the list of employees of the enterprise or establishment provided by the employer.

Waiting period for the establishment of a new union. In its previous comments the Committee noted that section 248 of the Labour Code provides that “further steps may not be taken to establish another union until six months have elapsed since the previous application”. The Committee notes in this connection that, according to the Government, the commitments made in the abovementioned White Paper include amendment of section 248. The Government states that all necessary efforts will be made to abolish the waiting period for making a further application to establish a union. The Committee hopes that section 248 of the Labour Code will be amended in the near future so as to eliminate the waiting period required for a further application to establish a union. It asks the Government to report on all developments in this regard.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. In its previous comments the Committee noted that article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act lay down a requirement to be “a national of El Salvador by birth” in order to hold office on the executive board of a union. The Committee notes the Government’s statement that it will provide information in due course on the progress made in amending the abovementioned provisions. The Committee recalls that foreign workers should be allowed access to trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). In these circumstances, the Committee once again asks the Government to take the necessary steps to have article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act amended so as to allow foreign workers to be elected to trade union office as indicated above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. In its previous comments, the Committee noted that under section 529 of the Labour Code, decisions regarding strikes require an absolute majority of the workers in the enterprise or establishment affected by the dispute, and that if the requirement is met, the decision shall be binding for all the personnel. Otherwise, if the decision obtains less than an absolute majority, the union and the workers who are active in the dispute shall be required to respect the freedom to work of those not participating in the strike. In its previous comments the Committee asked the Government to take the necessary steps to amend section 529 so that, when the decision is taken to call a strike, only the votes cast are taken into account and the principles 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 are recognized even where the strike has been decided upon by an absolute majority of the workers. The Committee notes that the Government indicates that section 529, third paragraph, respects the right to work of non-strikers and emphasizes that the second paragraph provides that, if the strike is decided upon by a majority of the workers affected by the dispute, the decision shall be binding on all the staff. The Government explains that the purpose of this provision is to guarantee the effects of the strike as a collective work stoppage agreed on by a plurality of workers. The Committee observes that the Government does not refer to the majorities required for strikes. The Committee recalls that, if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level [see General Survey, op. cit., paragraph 170]. The Committee further recalls that the principle 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 must be recognized even in cases where the strike has been decided upon by an absolute majority of the workers. The Committee requests the Government to take the necessary steps to have section 529 of the Labour Code amended so that when a decision is taken to call a strike, only the votes cast are taken into account, and so that the principle 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 are recognized even where the strike has been decided upon by an absolute majority of the workers.

Declaring strikes unlawful. In its previous comments the Committee noted that section 553(f) of the Labour Code establishes that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel of the enterprise or establishment”. It took the view that this provision is not only inconsistent with section 529, second paragraph, which establishes the right to strike of unions representing at least 30 per cent of the workers in the establishment or enterprise, but also places too great a restriction on the exercise of the right to strike. While noting the Government’s statement that it will report on any progress made in this area, the Committee hopes that in the near future the Government will take the necessary steps to amend or abolish section 553(f) of the Labour Code.

Purposes of the strike. In its previous comments, the Committee asked the Government to indicate whether workers and their organizations may have recourse to strike action as a means of protection against the Government’s economic and social policy, since section 528 of the Labour Code allows a strike to be declared only for the following purposes: the conclusion or revision of the collective labour agreement; the conclusion or revision of the collective labour agreement and the defence of the common occupational interests of the workers. The Committee notes in this connection the Government’s statement that, according to section 528, third paragraph, workers may resort to strike action for “the defence of the common occupational interests of the workers”, and that they may thus resort to strike action as a means of protection against the Government’s economic and social policy. Strike action for these purposes may be taken by occupational unions and by unions of independent workers which are directly affected by Government policies.

Essential services. In its previous comments the Committee noted that section 553(a) of the Labour Code provides that strikes shall be declared unlawful when they are called in essential services and that section 515 (on compulsory arbitration) provides that essential services are deemed to be services the interruption of which would endanger or threaten to endanger the life, personal safety or health or the normal conditions of existence of the whole or part of the population. Bearing in mind that the Labour Code does not specify which services are deemed to be essential, the Committee asks the Government to specify the services which are considered essential, to indicate who determines them, and to indicate what are considered to be the “normal conditions of existence”. The Committee notes in this connection the Government’s statement that the Labour Code does not specify a number of essential services but merely sets the parameters for determining which services are essential, in accordance with section 515, particularly the third paragraph, which provides that to qualify a service as essential, the circumstances of each case must be taken into account. The Government adds that the Director-General of Labour determines whether a service is essential, being the authority competent to settle the dispute. In these circumstances, the Committee asks the Government to provide information on the services that the Director-General of Labour has so far qualified as essential.

Minimum services. In its previous comments the Committee noted that section 532 of the Labour Code provides that within seven days of the commencement of a strike, the Director-General of Labour, at the request of one of the parties, “and after notification of the union that has called the strike”, shall determine the number, category and names of the workers who shall remain in the enterprise. The Committee asked the Government to indicate whether the notification of the union which called the strike is for the purpose of its participation in determining minimum services and whether the decision determining the minimum services is subject to judicial review enabling a prompt ruling to be obtained. The Committee notes in this connection the Government’s statement that the intent of the provision is to include the union that called the strike in the determination of minimum services. Such decisions may be challenged before a judicial body as established in the Procedural Labour Law, Book 4, which provides that rulings may be challenged by review, appeal and appeal for annulment.

Public servants. In its previous comments the Committee referred to article 221 of the Constitution which prohibits strikes by public and municipal workers. The Committee pointed out that prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State, and asked the Government to take the necessary steps to have article 221 so amended. It notes the Government’s statement that it has taken note of the Committee’s observation and will provide information in due course on all progress made in this matter. The Committee requests the Government in its next report to provide information on any developments regarding the amendment of article 221 of the Constitution.

Article 6. Right of workers’ and employers’ organizations to establish federations and confederations. In its previous comments the Committee noted that section 259 of the Labour Code provides for delegates of the Ministry of Labour and Social Insurance or of the public notary to participate in the constituent assembly of a federation or confederation to draw up the report indicating all the decisions taken. The Committee asked the Government to consider amending the legislation so as to make the presence of these representatives optional for the trade union organization. The Committee notes the Government’s statement that it has taken note of the Committee’s observation and will report on all progress made in this area. The Committee requests the Government to provide information in its next report on all developments regarding the amendment of section 259 of the Labour Code.

Public sector. In its previous comments the Committee requested the Government to indicate whether unions of public employees may establish federations and confederations and, if so, whether they are able to affiliate with central organizations which also include private sector workers. The Committee notes in this connection the Government’s statement that although such a possibility is not laid down in the Civil Service Act, this does not mean that the workers governed by the Act will be denied the right to establish federations and confederations. There being no specific provisions on the establishment of federations and confederations in the Act, the Labour Code has been applied. The Committee also notes the Government’s statement that although statutes for trade unions in public institutions recognizing such a right have already been approved, no federations of public servants have as yet been established. The Committee notes the Government’s statement that private sector and public sector workers may not group together in central organizations because they belong to different categories. The Committee recalls in this connection that it is acceptable for first‑level organizations of public officials and employees to restrict membership to these workers, provided that the first-level organizations are free to join federations and confederations of their choosing including organizations made up of public sector workers and private sector workers. The Committee requests the Government to take the necessary steps to ensure that organizations of public employees may join federations, confederations and central organizations of their choosing including organizations whose membership includes private sector workers.

CMNT_TITLE

Article 2 of the Convention. Right of workers’ organizations, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee recalls that under article 47 of the Constitution of the Republic, public officials and public employees did not enjoy the right to establish organizations. The Committee notes with satisfaction the amendment of article 47 of the Constitution by Decree No. 33 of June 2009, which establishes that employers and workers in the private sector, without distinction as to nationality, sex, race, creed or political persuasion, and whatever their activity or the nature of the work they perform, have the right freely to associate in order to defend their respective interests, forming occupational associations or unions; the same right is given to workers of autonomous official institutions, public officials and employees and municipal employees. The Committee has furthermore been informed that legal personality was recently granted to the Union of Men and Women Workers of the Judicial Body (SITTOJ), the Union of Judiciary Employees of El Salvador (SINEJUS), and to unions of workers in education, ministries and municipalities.

As regards other issues relating to article 47 of the Constitution and other legislative matters, including the exclusion of certain categories of public employees from the right to organize, the Committee is addressing a request directly to the Government.

CMNT_TITLE

The Committee notes the Government’s first report and its reply to the comments of the International Trade Union Confederation (ITUC) of 28 August 2007 and the new comments of the ITUC of 29 August 2008 relating to legislative matters. The ITUC also refers to serious acts of violence against trade unionists, the detention of a trade union leader and the refusal to register a trade union. The Committee requests the Government to provide its observations in this respect.

The Committee also notes the various cases that are under examination by the Committee of Freedom of Association.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Exclusion of numerous public employees from the guarantees of the Convention. The Committee notes that under sections 4 and 73, second paragraph of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, many workers in the public sector are excluded from the guarantees afforded by the Convention. Section 4 of the Act refers to public servants who are excluded from an administrative career and therefore from the right to organize, while section 73, second paragraph, refers to workers who do not enjoy the right to organize (public servants covered by articles 219(3) and 236 of the Constitution of the Republic, titularized employees of the Office of the Public Prosecutor and their deputies, those acting as auxiliary staff, labour prosecutors and their substitutes, those engaged in judicial careers and other public servants who are excluded from an administrative career). In this respect, the Committee considers that “given the very broad wording of Article 2 of Convention No. 87, all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings”. In the case of public servants holding managerial and supervisory positions, the Committee had considered that “to bar these public servants from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to establish their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities” (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 49 and 57). In this respect, since in accordance with Article 2 of the Convention, all workers, without distinction whatsoever, with the sole possible exception of the armed forces and the police (Article 9 of the Convention) should be able to establish organizations of their own choosing, the Committee requests the Government to take the necessary measures to amend sections 4 and 72, second paragraph, of the Civil Service Act to allow all public servants to establish and join organizations of their own choosing, in accordance with the Convention.

Declaration of unconstitutionality. The Committee also notes that in a ruling of 31 October 2007 the Constitutional Chamber of the Supreme Court of Justice found that the extension of the right of freedom of association to public employees who are not included among those enjoying this right under the Constitution of the Republic is unconstitutional (D.O. 2003 T. 377 of 31 October 2007). The Committee observes that the Government does not refer to this issue in its report. The Committee regrets this decision by the Constitutional Chamber handed down shortly after the ratification of Conventions Nos 87 and 98 and requests the Government to guarantee the application of the Convention to public employees including, if necessary, through the reform of the Constitution.

The Committee notes from the cases under examination by the Committee on Freedom of Association that workers in private security firms do not enjoy the right to establish or join trade union organizations. The Committee considers that, in accordance with Article 2 of the Convention, these workers must also enjoy the right to organize and requests the Government to take the necessary measures in this respect.

Right of workers and employers to establish and join organizations of their own choosing. The Committee notes that section 204 of the Labour Code prohibits membership of more than one trade union. In this respect, the Committee considers that workers who are engaged in different activities in more than one job should be able to join the corresponding unions, and that in any event workers should be able, if they so wish, to join trade unions at the branch level as well as the enterprise level at the same time. The Committee requests the Government to take the necessary measures for this provision to be amended in accordance with this principle.

Right of workers and employers to establish organizations without previous authorization. Minimum membership. The Committee notes that section 211 of the Labour Code and section 76 of the Civil Service Act establish the requirement of 35 workers and section 212 of the Labour Code requires seven employers as a minimum to be able to establish an organization. The Committee notes that in its previous report the Government indicated that the Ministry was working on the establishment of a special commission entrusted with formulating a proposed amendment to the Labour Code in this respect. The Committee considers that the minimum membership should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey, op. cit., paragraph 81). In this respect, the Committee requests the Government to take the necessary measures to amend section 211 of the Labour Code and section 76 of the Civil Service Act to reduce the minimum number of workers necessary to establish a workers’ organization, for example to 25 members, taking into account the large proportion of small and medium-sized enterprises in the country. Moreover, the Committee requests the Government to take the necessary measures to amend section 212 of the Labour Code in order to reduce the necessary minimum number of members to establish an employers’ organization.

Requirements for the acquisition of legal personality. The Committee notes that under section 219, for trade unions to be legally constituted, within five days of the documentation being submitted to the Ministry of Labour and Social Insurance, the latter shall contact the employer with a view to ascertaining the status of the founder members as employees. The Committee considers that, as this involves the communication of the names of the members to the employer, this provision may give rise to acts of discrimination against workers who wish to establish a union. The Committee requests the Government to take the necessary measures to amend this provision, for example, by establishing that the verification shall be carried out by the Ministry of Labour by checking the list of employees of the enterprise or establishment provided by the employer.

Waiting period for the establishment of a new union. The Committee notes that section 248 provides that “further steps may not be taken to establish another union until six months have elapsed since the previous application”. In this respect, the Committee notes the Government’s indication that the special commission which will formulate proposed amendments to the Labour Code will also be entrusted with the amendment of this section. The Committee considers that once the legal requirements have been fulfilled, unions should be registered and recognized without delay. The Committee hopes that the envisaged reform will abolish the above waiting period.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. The Committee notes that article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act establish the requirement to be “a national of El Salvador by birth” to hold office on the executive board of a union. In this respect, the Committee considers that provisions on nationality which are too strict could deprive some workers of the right to elect their representatives in full freedom. In this respect, foreign workers should be allowed to take up trade union office at least after a reasonable period of residence in the host country (see General Survey, op. cit, paragraph 118). The Committee requests the Government to take the necessary measures to amend article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act so as to allow the election of foreign workers to trade union office in accordance with the principle indicated above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee notes that under the terms of section 529 of the Labour Code, strikes shall be decided upon by the absolute majority of the workers in the enterprise or establishment affected by the dispute, in which case the decision shall be binding for all the personnel. In contrast, if it is decided upon by less than the absolute majority, the union and the workers who are active in the dispute shall be under the obligation to respect the freedom to work of those not participating in the strike. In this respect, the Committee considers that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level (see General Survey, op. cit., paragraph 170). Furthermore, even in cases where the strike has been called by the absolute majority of the workers, the principle 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 has to be recognized. The Committee requests the Government to take the necessary measures to amend section 529 so that, when the decision is taken to call a strike, only the votes cast are taken into account and the principle 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 are recognized even in cases in which the strike has been decided upon by the absolute majority of workers.

Declaring strikes unlawful. The Committee notes that section 553(f) of the Labour Code provides that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel of the enterprise or establishment”. The Committee observes that, on the one hand, this provision is in contradiction with section 529, second paragraph, which establishes the right to strike of unions representing at least 30 per cent of the workers in the enterprise or establishment and, on the other, places too great a restriction on the exercise of the right to strike. The Committee considers that section 553(f) should be amended or repealed.

Purposes of the strike. The Committee notes that, under section 528 of the Labour Code, strikes may only be called for the following purposes: the conclusion or revision of the collective labour agreement; the conclusion or revision of the collective labour agreement and the defence of the common occupational interests of workers. In this respect, the Committee considers that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers on general, in particular as regards employment, social protection and the standard of living (see General Survey, op. cit., paragraph 165). The Committee requests the Government to indicate whether workers and their organizations may have recourse to strike action as a means of protection against the Government’s economic and social policy.

Essential services. The Committee notes that section 553(a) of the Labour Code provides that strikes shall be declared illegal when they are called in an essential service and that section 515 (respecting compulsory arbitration) indicates that essential services are considered to be those the interruption of which would endanger or threaten to endanger the life, personal safety or health or the normal conditions of existence of the whole or part of the population. The Committee, however, observes that there is no reference in the Labour Code indicating which specific services are considered essential. The Committee requests the Government to indicate the services that are considered essential, who determines such services and what are considered to be “normal conditions of existence”.

Minimum service. The Committee notes that section 532 of the Labour Code provides that within seven days of the commencement of a strike, the Director-General of Labour, at the request of one of the parties, “and after notification of the union that has called the strike”, shall determine the number, category and names of the workers who shall remain in the enterprise for the performance of work the suspension of which may seriously prejudice or render impossible the normal recommencement of work or affect the security or conservation of the enterprises or establishments. In this respect, the Committee considers that, since minimum services restrict one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities (see General Survey, op. cit, paragraph 161). In this respect, the Committee requests the Government to indicate: (1) whether the notification of the union which called the strike is for the purpose of its participation in the determination of minimum services; and (2) whether the administrative decision determining minimum services is subject to judicial appeal through which a rapid ruling can be obtained.

Public servants. The Committee notes that article 221 of the Constitution prohibits strikes by public and municipal employees. In this respect, the Committee considers that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 151). The Committee requests the Government to take the necessary measures to amend article 221 of the Constitution so that strikes are possible in the public sector, with the sole possible exception of public servants exercising authority in the name of the State.

Article 6. Right of workers’ and employers’ organizations to establish federations and confederations. The Committee notes that section 259 of the Labour Code provides for the participation, of delegates of the Ministry of Labour and Social Insurance or of the public notary, in the constituent assembly of a federation or confederation to draw up the report indicating all the decisions taken. The Committee notes that, according to the Government, this provision refers to a specific procedure for federations and confederations, which differs from that for unions. In this respect, the Committee requests the Government to consider the amendment of the legislation for the purpose of making the presence of the public notary or the delegate of the ministry optional for the trade union organization.

Public sector. The Committee notes that the Civil Service Act does not contain provisions respecting the establishment of federations or confederations in this sector. In this regard, the Committee requests the Government to indicate whether unions of public employees may establish federations and confederations and, if so, whether they are able to group together in central organizations which also cover private sector workers.

The Committee requests the Government to provide information on all the measures adopted in relation to each of the matters raised above.