Report in which the committee requests to be kept informed of development - Report No 367, March 2013

1. 716. The complaint is contained in a communication from the National Association of Private Enterprise (ANEP) dated 7 March 2012.
2. 717. The Government sent its observations by communication dated 25 February 2013.
3. 718. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 719. In its communication of 7 March 2012, ANEP alleges that, on 5 March 2012, the Government, without consulting employers’ and workers’ organizations, instituted a reform of the Vocational Training Act intended to alter the structure of the management board of the National Institute for Vocational Training (INSAFORP) so that it would be made up of ten directors, distributed as follows: five Government representatives, nominated by the Ministries of Foreign Affairs, the Economy, Tourism, Education, and Labour and Social Welfare; one representative nominated by the President of the Republic; two representatives nominated by the private sector; and two representatives nominated by the labour sector. The reform initiative provides for the same number and distribution of alternates, and also stipulates that the chairperson and vice-chairperson of the board are to be appointed by the President from among the Government representatives. It is important to point out that INSAFORP was created through the promulgation of the Vocational Training Act, in accordance with section 1 thereof. This Act is a labour law that aims to meet the need for qualified human resources arising from the country’s social and economic development and to promote improved living conditions for workers and their families.
2. 720. ANEP points out that El Salvador has also ratified the Human Resources Development Convention, 1975 (No. 142), Article 5 of which states: “Policies and programmes of vocational guidance and vocational training shall be formulated and implemented in co operation with employers’ and workers’ organisations and, as appropriate and in accordance with national law and practice, with other interested bodies.” This provision clearly establishes the obligation for States that have ratified the Convention to implement vocational training policies jointly. Logically, it entails equitable participation by public institutions, employers and workers, both in implementation itself and in the decision-making process, for implementing these policies. The above legislative initiative departs drastically from this principle, as the majority attributed to the Government representatives within the INSAFORP management board which is responsible for making decisions on the implementation of vocational training policies will render collaboration with and participation by the employer and worker sectors irrelevant.
3. 721. ANEP adds that, if a country such as El Salvador has ratified the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), this implies that the State is obliged to undertake national tripartite consultations on draft reforms and measures relating to Conventions and their application within the country’s territory, particularly those that refer to the tripartite composition of public institutions responsible for implementing policies such as those covered by Convention No. 142.
4. 722. ANEP alleges that the reform of the Vocational Training Act, if adopted, would violate the provisions of Article 3 of the Freedom of Association and Collective Bargaining Convention, 1948 (No. 87), as it reduces the capacity for employer representation in the INSAFORP and undermines Conventions Nos 142 and 144. ANEP emphasizes that the legislative initiative to reform the composition of the INSAFORP management board was not even submitted in advance to the Higher Labour Council, a tripartite body, or to employers’ or workers’ organizations. This contravenes section 7(c) of the Higher Labour Council’s rules of procedure, which states: “The Higher Labour Council shall have the following functions: ... (c) to give its opinion on any advance drafts of reforms to labour and social welfare legislation and relevant regulatory measures that, in view of their importance, may be submitted to it by the Government.”
5. 723. This obligation to consult, continues ANEP, is recognized in the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152), (paragraph 5(c)), which provides for consultations of representatives of employers’ and workers’ organizations, subject to national practice, on the preparation and implementation of legislative or other measures to give effect to Conventions – especially when ratified – and Recommendations, particularly those that relate to consultation and collaboration with employers’ and workers’ representatives. Furthermore, in accordance with article 19(5)(d) of the ILO Constitution, a State that ratifies a Convention commits itself to taking such action as may be necessary to make effective the provisions of the Convention. The obligation does not only consist of incorporating the Convention into national legislation, but also involves the need to ensure its application in practice, as well as giving it effect in law or other means that are in accordance with national practice.
6. 724. ANEP states that the application of Conventions Nos 142 and 144 carries with it the obligation to hold tripartite consultations on any plans to reform the Vocational Training Act. It is therefore an essential obligation upon the State to carry out such consultations before instituting legal reforms, but consultations have not been held with any employers’ or workers’ organizations, which violates the letter and spirit of the above Conventions and of Convention No. 87.

B. The Government’s reply

1. 725. In its communication dated 27 February 2013, the Government indicates that, on 5 March 2012, it submitted to the Legislative Assembly a draft Legislative Decree containing amendments to the Vocational Training Act, based on article 133, paragraph 2, of the Constitution, which confers on the President of the Republic, through the Ministers, the legislative initiative in all fields within the remit of the Executive. The objective of the draft is the enable INSAFORP to better fulfil its duties, by strengthening the institution through the adjustment and modification of its directorial and management structure, and, thus, meeting its purpose or raison d’être of satisfying the needs of qualified human resources so as to conduce to the economic and social development of the country and the improvement of the living conditions of workers and their families.
2. 726. The Government adds that the draft Legislative Decree retains the tripartite structure of INSAFORP’s management board, as provided for since its establishment in Legislative Decree No. 554 of 2 June 1993; the proposal only modifies the number of board members per sector.
3. 727. As regards the allegation by the complainant organization ANEP that the legislative initiative has impaired the representative capacity of the employers and breached the principle of collaboration resulting in the purported violation of Conventions Nos 87, 142 and 144, the Government considers that this allegation lacks any basis and is impertinent, given that the draft Decree falls under the purview of the responsibilities and, at the same time, duties assigned to the President of the Republic by the Constitution of El Salvador in its article 168, paragraph 5, according to which: “The duties and responsibilities of the President of the Republic include: Ensure the effective management and execution of public affairs.”

C. The Committee’s conclusions

1. 728. The Committee notes that in this complaint, the complainant organization alleges that, in contravention of Convention No. 87 and Conventions Nos 142 and 144, the Government instituted a reform of the Vocational Training Act, altering the structure of the management board of the INSAFORP. The Committee notes that, according to the allegations, this initiative: (1) violates the principle of tripartite consultation, having been introduced without prior consultation of employers’ and workers’ organizations or submission to the Higher Labour Council (a tripartite body), despite the fact that section 7 of the Council’s rules of procedure includes “giving its opinion on any advance drafts of reforms to labour and social welfare legislation” among its functions; and (2) results in an excessive majority of Government representatives on the INSAFORP management board, such that it impedes equitable participation in the decision-making process by representatives of employers’ and workers’ organizations.
2. 729. The Committee notes the Government’s observations according to which: (i) the legislative initiative was in conformity with the Constitution and aimed at enabling INSAFORP to better fulfil its duties and objective by strengthening the institution through the adjustment and modification of its directorial and management structure; and (ii)the said initiative retains the tripartite structure of INSAFORP’s management board, although modifying the number of board members.
3. 730. The Committee observes that, as emphasized in the allegations, the legislative initiative contested by ANEP provides for the management board of the INSAFORP to be made up of ten directors, distributed as follows: five Government representatives, nominated by the Ministries of Foreign Affairs, the Economy, Tourism, Education, and Labour and Social Welfare; one representative nominated by the President of the Republic; two representatives nominated by the private sector; and two representatives nominated by the labour sector. The reform initiative provides for the same number and distribution of alternates, and also stipulates that the chairperson and vice-chairperson of the board are to be appointed by the President from among the Government representatives.
4. 731. The Committee observes that the composition of the INSAFORP management board is indeed clearly unbalanced, in terms of both members and alternates, and should be adjusted so that the authorities, employers’ representatives and workers’ representatives are represented more equitably. Furthermore, given that the Government has not denied the lack of consultations with the most representative employers’ and workers’ organizations, the Committee regrets that the legislative initiative to alter the management board was not submitted to the Higher Labour Council, as signalled in the allegations, despite this body having a specific mandate to examine draft labour legislation, particularly taking into account that El Salvador has ratified Conventions Nos 87, 98, 142 and 144, as ANEP points out.
5. 732. This being the case, the Committee draws the Government’s attention to the principle whereby tripartite consultation should take place before the Government submits a draft to the Legislative Assembly or establishes a labour, social or economic policy, and to the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1070 and 1075]. The Committee recalls that such consultation should be detailed, full and frank [see Digest, op. cit., paras 1074 and 1075], and that the process of consultation on legislation and minimum wages helps to give laws, programmes and measures adopted or applied by public authorities a firmer justification and helps to ensure that they are well respected and successfully applied; the Government should seek general consensus as much as possible, given that employers’ and workers’ organizations should be able to share in the responsibility of securing the well-being and prosperity of the community as a whole. This is particularly important given the growing complexity of the problems faced by societies. No public authority can claim to have all the answers, nor assume that its proposals will naturally achieve all of their objectives [see Digest, op. cit., para. 1076]. The Committee requests the Government to ensure that these principles are fully respected in future.
6. 733. In view of the above, the Committee requests the Government to hold in-depth consultations with workers’ and employers’ organizations, within the framework of the Higher Labour Council, with a view to reaching a joint decision that will ensure a balanced tripartite composition for the INSAFORP management board and to submit the joint decision to the Legislative Assembly without delay, as part of the consideration of the legislative initiative previously submitted by the Government.