Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the comments made by the Inter-Union Commission of El Salvador, dated 12 September 2002. These comments were forwarded to the Government, on 19 September, for any comments that might be considered appropriate, and the Government’s reply was received on 20 December 2002.

The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU), dated 31 January, received on 3 February 2003 and forwarded to the Government on 17 February. The Government’s reply was received on 23 April 2003.

1. Trafficking in persons. In its communication, the Inter-Union Commission of El Salvador referred to the trafficking in persons and the "worrying frequency" with which foreign nationals from neighbouring countries are subjected to deception and are forced by means of threats to engage in sex work under clearly inhumane conditions.

The International Confederation of Free Trade Unions (ICFTU) raised similar issues, describing the trafficking in women and young persons for the purposes of forced prostitution, occurring in El Salvador, as constituting a "considerable problem".

The Committee notes the study carried out by the International Programme on the Elimination of Child Labour (IPEC) entitled "El Salvador commercial sexual exploitation of girls, boys and young persons: A rapid evaluation", published in March 2002. This report indicates that "based on previous investigations and information received during the current investigation it is possible to state that there is a migratory flow of young persons for the purposes of commercial sexual exploitation which is not necessarily concentrated in the capital, but also on the borders and in border towns and in other Central American countries" (page 41).

The Committee also notes the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography (UN document E/CN.4/2000/73/Add.2, 27 January 2000, paragraphs 51, 74 and 107) which refers repeatedly to the presence of young persons from El Salvador in Guatemala. State officials informed the Special Rapporteur that there are children from El Salvador, Honduras, Mexico and Nicaragua who are in Guatemala for prostitution, in much the same way that Guatemalan children are in those countries for the same reason (paragraph 47).

The Committee also notes the Concluding Observations of the United Nations Committee on the Elimination of Discrimination Against Women (UN document A/58/38/, 28th Session, paragraph 271) in which the above Committee noted with concern the problem of exploitation of prostitutes and trafficking and sale of women and girls and the lack of studies, analyses and gender-disaggregated statistics on its incidence.

The Committee notes that sections 367 and 370 of the new Penal Code provide that the trafficking in persons for any purpose and organizing or being a member of "organizations of an international nature devoted to trafficking in slaves, the sale of persons ..." shall be punishable by imprisonment of from four to eight years and from five to 15 years respectively. The Committee hopes that the Government will provide copies of the rulings, sentences and judicial measures applied under these provisions.

The Committee notes that in its reply to the comments made by the ICFTU the Government refers to the draft Code of Children and Young Persons and mentions the "formulation of reforms to the national legislation to combat commercial sexual exploitation", with special emphasis on the "strengthening of penalties for pimps" and the designation as a criminal offence of the acts of exploiters of young girls, better known as "clients".

The Committee hopes that the Government will provide a copy of the Code of Children and Young Persons, as soon as it is adopted, as well as information on the measures to combat the commercial sexual exploitation of young persons and their implementation in practice.

The Committee notes that the sixth report submitted by the Government to the Committee on the Elimination of Discrimination Against Women (CEDAW/C/SLV/6, of 25 November 2002, page 12) contains information on the adoption of two Municipal Codes containing provisions respecting the trafficking in women and the exploitation of the prostitution of women, namely the San Salvador Municipal Code, which entered into force on 1 March 2000, and the Santa Ana Municipal Code. The Committee requests the Government to provide copies of the above Codes.

The Committee recalls that the trafficking in persons, and particularly the trafficking in young persons, constitutes a grave violation of the Convention and urges the Government to take the necessary measures to prevent and combat the phenomenon. Furthermore, noting that the Government has not replied to the Committee’s general observation of 2000, it requests the Government to provide the information requested therein.

2. Overtime performed in the maquila industry. The Inter-Union Commission of El Salvador also refers in its communication to the "forced labour conditions frequently encountered (...) in foreign-owned maquila enterprises". In support of its allegations, it refers, inter alia, to working days beyond the hours set forth by the law, failure to pay overtime, determination of quotas or targets beyond any reasonable work performance to be completed outside working hours.

The Committee notes the information contained in the monitoring report on the maquila and special fiscal areas published by the Labour Relations Monitoring and Analysis Unit of the Ministry of Labour and Social Insurance in July 2000. In this respect, the Committee notes the reservation expressed by the Government in its report with regard to the above report with the indication that "the above publication was never made official by this Secretariat of Labour and Social Insurance, and as a consequence the views expressed therein do not in any way reflect the official position of this Ministry".

According to the above report, during the visits made, it was possible to confirm that overtime is worked on a daily basis in the majority of maquila companies, in order to complete the production goals established by the company. Despite finding that in these enterprises the remuneration is in many cases in accordance with the law, the report indicates that most of the overtime hours are worked at night time without being paid the additional rate of 25 per cent for each hour worked as provided by the law. According to the report, "it is also important to point out that in the majority of companies it is an obligation for the personnel to work overtime under the threat of firing or some other kind of reprisal (...)". It is further indicated that "on some occasions, because overtime is extended into the late hours of the night, the workers find themselves obligated to sleep in the factory facilities, which do not have conditions necessary for personal care" (pages 12 and 13).

The Committee hopes that the Government will provide information on the average number of overtime hours performed by workers in the maquila sector.

The Committee recalls that the imposition of overtime hours does not affect the application of the Convention in so far as such a requirement lies within the limits established by the national legislation or accepted by collective agreements. In this case, however, the allegations are that overtime hours imposed above such limits and without payment would constitute compulsory labour where performed under menace of dismissal.

The Committee hopes that the Government will indicate the measures taken or envisaged to protect workers in the maquila sector against the imposition of compulsory labour.

3. Article 2, paragraph 2(c), of the Convention. In its previous comments, the Committee requested information on the measures which have been taken or are envisaged to ensure that convicted persons are able to give their consent to the employment relationship with private entities.

The Committee notes that in its report the Government refers to section 105 of the Prisons Act, which establishes the identity of prison work as free work, in every possible respect, from which it may be deduced that it is of a voluntary nature.

The Committee notes with interest that section 110 of the Prisons Act provides that private entities which engage detainees shall pay no less than the minimum wage required for such work and that all the rights set forth in the labour legislation shall be applicable to prisons provided that they are not contrary to the Prisons Act (section 105).

With regard to the consent which must be given by the detainee for the employment relationship with private entities, the Committee nevertheless notes that under the terms of section 107 of the Prisons Act, "convicted persons shall be obliged to work" and that this provision does not allow the inference that work by detainees for private entities is of a voluntary nature.

The Committee hopes that the Government will indicate the measures that have been taken or are envisaged to establish that detainees must freely give their consent to an employment relationship with private entities.