Definitive Report - Report No 365, November 2012

1. 647. The complaint is contained in a communication from the Union of Workers of the Ministry of Finance (SITRAMHA) dated 5 October 2011.
2. 648. The Government sent its observations in a communication dated 20 August 2012.
3. 649. 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. 650. In its communication of 5 October 2011, SITRAMHA states that it was established on 18 July 2009 and that towards the end of 2010 it presented a list of demands to the Civil Service Tribunal, which the national legislation has appointed to monitor collective bargaining in the public sector for purposes of collective agreements.
2. 651. The complainant states that, although the direct bargaining stage between the parties should have begun in January 2011, at the verbal request of the Office of the Ministry of Finance it started in February 2011.
3. 652. Accordingly, the parties formally embarked upon the conciliation stage of the collective bargaining and a negotiating committee was set up by the Office of the Ministry and, albeit without any power to take decisions or enter into negotiations.
4. 653. At the end of July 2011, the Ministry of Finance embarked upon a media campaign and sent a series of internal memorandums (which the complainant attached) that were contrary to the spirit of collective bargaining and interfered in the affairs of the trade union and its executive board.
5. 654. On 12 August 2011, the Civil Service Tribunal issued an order for the third (arbitration) stage to begin. On 26 August, the Tribunal issued a further order listing the arbitrators appointed by the union and by the Ministry of Finance.
6. 655. On 21 September 2011, the Civil Service Tribunal summoned the arbitrators designated by the Ministry of Finance (José Antonio Morales Tomás Carbonell and Danilo Ernesto Flores López) and by the union (José Dagoberto Gutiérrez Linares and José María Esperanza Amaya) to be sworn in.
7. 656. On 27 September, however, the Civil Service Tribunal, in an obvious tactic to delay the negotiations, issued a report stating that the arbitrators appointed by the Ministry of Finance had resigned. On 28 September, the union sent the Ministry a note renewing its request for a hearing and proposing that the question of the resignation of the arbitrators appointed by the Ministry of Finance be placed on the agenda. The Ministry returned the note stating that the union had no right to demand anything.
8. 657. The complainant states that, owing to the Ministry’s delaying tactics, the general budget was presented to the Legislative Assembly in September 2011 without the provision which the collective agreement was intended for, thus signalling the breakdown in the collective bargaining process.

B. The Government’s reply

1. 658. In its communication, dated 20 August 2012, the Government refers to the collective bargaining process between SITRAMHA and the Ministry of Finance before the Civil Service Tribunal, which is designated by the Civil Service Act to conduct negotiations on collective labour agreements in the public sector. The Government adds that the procedure laid down in article 129 to 158 of the said Act for collective agreements dealing with economic or group interest matters was strictly adhered to.
2. 659. The Government states that, on 18 November 2010, SITRAMHA presented a list of demands containing 128 clauses. Of these, 28 were approved at the direct discussion stage, 22 were approved at the conciliation stage (when it was also agreed to delete seven clauses) and 72 clauses were left pending agreement. Once the conciliation stage had ended, the points on which disagreement remained were submitted to arbitration, pursuant to article 144 of the Civil Service Act, so that the clauses on which no agreement had been reached could be resolved.
3. 660. The Government states that, before the arbitration stage began and in accordance with article 145 of the Civil Service Act, each party appointed its representatives on the Arbitration Tribunal and so informed the President of the Civil Service Tribunal, who proceeded to swear in the Tribunal and its President. The Tribunal was called to order on 17 October 2011 when it embarked on an examination and analysis of each of the clauses set aside for arbitration, as required by article 153 of the Civil Service Act. The Arbitration Tribunal handed down its ruling on 1 December 2011, when it declared that state policy on the subject must reflect certain basic characteristics: (1) gradual implementation of the agreement over time; (2) financial sustainability in keeping with the country’s economic situation; (3) the high quality of the public service, the ethical conduct of the services rendered, the vocational training of staff, technological development, the efficient use of resources and solidarity with the people in the conduct of their activities; (4) the equity and homogeneity of wage and labour union policies in all public institutions; (5) the responsible conduct of trade union affairs in a spirit of solidarity; and (6) the stability of the labour market, the promotion of careers according to personal merit and observance of the legal provisions in force. The ruling also approved 35 clauses, which the Tribunal ordered to be incorporated into those on which agreement had already been reached during the previous stages (i.e. inserted and numbered in the order in which they initially appeared in the list of demands).
4. 661. Finally, the clauses that were approved at the direct discussion, conciliation and arbitration stages were consolidated to form the collective labour agreement for 2012–14 of SITRAMHA and the Ministry of Finance. The agreement was registered with the National Department of Social Organizations of the Ministry of Labour and Social Welfare on 22 December 2011.

C. The Committee’s conclusions

1. 662. The Committee takes note that in the present case the complainant alleges that the Ministry of Finance employed delaying tactics and deliberately slowed down the negotiation of the collective labour agreement (which began in February 2011), that the Ministry appointed officials who had no training in collective bargaining and decision-making and that it did not inform the union of the swearing in of the Ministry’s new representatives on the Civil Service Tribunal (as those who had been appointed initially resigned on 27 September). As a result, at the date the complaint was presented (5 October 2011), the arbitration stage had not yet been concluded, which meant that no provision was submitted to the Legislative Assembly in the general budget presented in September 2011 that took into account the demands of the complainant trade union.
2. 663. The Committee takes note that the Government states that on 1 December 2011 the Arbitration Tribunal handed down its ruling, approving 35 clauses to be added to those on which the parties had already agreed – 28 at the direct discussion stage and 22 at the conciliation stage, at which it had also been agreed to delete seven clauses. According to the Government, the Arbitration Tribunal began its work on 17 October 2011 (20 days after the Ministry of Finance’s arbitrators resigned and others had been appointed to replace them).
3. 664. In these circumstances and taking into account that the two parties approved a significant number of clauses during the direct discussion and conciliation stages and that the new arbitrators were appointed within 20 days, the Committee is unable to conclude that there was any lack of good faith by the Ministry of Finance by way of delaying tactics during the negotiations, especially since this was the Ministry’s first collective agreement and would normally be expected to entail a longer bargaining process.
4. 665. The Committee also takes note of the complainant’s allegation that, because of the delay in the negotiations, the general budget did not include any provision reflecting the financial clauses contained in their list of demands. However, the Committee observes that the complainant has not presented any further objections to the content or consequences of the Arbitration Tribunal’s ruling and that it is not impossible that the said ruling touched on the union’s wage demand or that the draft budget subsequently included a heading dealing with remuneration at the Ministry of Finance.
5. 666. Finally, the Committee takes note of the allegations concerning internal communications at the Ministry of Finance that were designed to interfere or to influence union leaders and members during the bargaining process and observes that the Government has not provided any observations on the subject. The Committee observes that the said communications (attached by the complainant to its complaint) refer, on the one hand, to the Ministry’s refusal to authorize the holding of a union meeting on its premises during working hours and, on the other, to notification of decisions regarding certain perennial union demands (a basic food basket, recognition of mission expenses on a broader scale, an increase in the value of life insurance at the Ministry, more extensive medical and dental assistance and better coverage of transport costs), which the Ministry states were resolved independently of the negotiations on the collective agreement. The Committee states that, had these important decisions been reached during the collective bargaining, the strike called by the union to improve working conditions might have been averted. The Committee expects that decisions of this kind will in future be taken in consultation or during negotiations with the trade union. That said, observing that the main problem in the case has been resolved by the new collective agreement, the Committee considers that the case does not call for further examination.