Definitive Report - Report No 392, October 2020

1. 608. The complaint is contained in a communication from the National Union of Prison Workers (SITRAPEN) of 7 February 2018.
2. 609. The Government sent its observations in a communication of 25 February 2019.
3. 610. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 611. In its communication of 7 February 2018, the complainant union, which is in the prison sector, alleges that the authorities are taking efforts aimed at breaking up the union and calls for full recognition of the right of prison workers to organize.
2. 612. SITRAPEN alleges that the Government pursued a separatist strategy to break up the union. The complainant union states that: (i) the lawyers of the Directorate-General for Prisons are relentlessly hounding workers throughout the working day, asking them to fill in forms to withdraw their membership; and (ii) they then send these forms to the Ministry of Labour and Social Security so that it can authorize the withdrawals, in violation of the Constitution and the ILO Conventions.
3. 613. The complainant union alleges that, both in its actions and in its decisions, the Government uses the argument that custodial officers of the prison system do not benefit from the right to organize, as they are excluded from the administrative career system under the Civil Service Act. This is notwithstanding the 2009 constitutional reform that was introduced in order to ensure conformity with ILO standards, which lifted this restriction on freedom of association.
4. 614. The complainant union considers that: the Government should respect the right of prison workers to organize; the Ministry of Labour and Social Security should declare itself incompetent to continue taking over the role relating to the union membership of workers that the Civil Service Act confers on trade union executive boards; and all of the withdrawals authorized by the Ministry should be declared null and void and the outstanding membership dues should be paid to the union (a copy of the decisions on withdrawal taken by the Directorate-General for Labour is attached to the complaint).

B. The Government’s reply

1. 615. In its communication of 25 February 2019, the Government provides the replies of the authorities concerned in respect of the allegations raised in the complaint. The Government states that:
   • (i) large numbers of SITRAPEN members have approached the National Department of Trade Unions claiming that the members of the union’s executive board refuse to accept their withdrawal from the union. The Government adds that there has been an increase in the number of withdrawals by SITRAPEN members since the end of 2015;
   • (ii) with regard to the procedure for withdrawing from a trade union before the National Department of Trade Unions, the Government points out that this procedure is followed in accordance with the provisions of section 99 of the Civil Service Act, which provides that, in the event that the members of the executive board refuse to accept the withdrawal, the withdrawing worker may apply to the Ministry of Labour and Social Security. Under this provision, the legal representatives of the trade union are summoned so that they can be notified of the worker’s decision and, once the procedure has been completed, the order confirming the withdrawal is sent out and the relevant party is instructed to stop deducting the trade union dues from its payments;
   • (iii) as a safety precaution in such cases, which also applies in respect of other unions, the Government requires any workers who wish to withdraw their union membership to submit an affidavit, to be authenticated by a notary, stating that the executive board of the union to which they belong refuses to accept their withdrawal;
   • (iv) under the Constitution, the authorities are required to accept such applications and the Civil Service Act provides for the possibility that the worker concerned might not be physically present. Accordingly, it is not possible to accede to the request made by the complainant union to reject applications for withdrawal from a trade union that are not submitted in person by the withdrawing worker;
   • (v) the authorities are merely complying with due process, which is demonstrated in the decisions on withdrawal made by the Directorate-General for Labour that are annexed to the text of the complaint. These records show that, although both parties had been summoned, neither the workers who submitted the application for withdrawal nor the union representatives attended the hearing, and therefore the withdrawal was carried out on the basis of the documentation submitted, with both the workers and SITRAPEN being duly notified; and
   • (vi) the Directorate-General for Prisons states that it has acted in accordance with the law and that it has not intervened or interfered in respect of the freedom of association of SITRAPEN members, and the Government considers, as is clear from the above, that there is no separatist strategy to break up SITRAPEN or to promote the withdrawal of its members, as is falsely alleged in the complaint.

C. The Committee’s conclusions

1. 616. The Committee notes that the complaint alleges that the authorities are interfering in a prison-sector union by encouraging the withdrawal of its members; and it alleges a failure to give full recognition to the right of prison workers to organize.
2. 617. The Committee notes that, while the complainant organization alleges that the prison authorities are encouraging the withdrawal of its members, the Government denies these allegations and states that it has followed the legally established procedure for cases in which the union’s executive board refuses to accept the withdrawal of its members. The Government states that, in accordance with this procedure, the union was notified of the withdrawal request and it did not appear at the hearing to which it was summoned. The Government highlights that compliance with this procedure is demonstrated in the decisions on withdrawal that have been sent by the complainant together with the complaint, which support the explanations given by the authorities. The Government adds that, as a precautionary measure, the authorities require the submission of an affidavit by the worker alleging that the executive board has not accepted their withdrawal. The complainant organization considers that, through these actions, the authorities are interfering in the internal affairs of the union.
3. 618. The Committee considers that it is not contrary to freedom of association to have a rule allowing workers to notify the competent authorities of their withdrawal if the union’s executive board refuses to accept it. With regard to the allegation that the employer’s lawyers are hounding the workers to leave SITRAPEN, the Committee notes that the prison authorities deny any act of interference and that the complainant does not provide any details or evidence that would allow the allegation to be examined. In these circumstances, the Committee will not pursue its examination of these allegations.
4. 619. The Committee also notes the complainant organization’s allegation, which is not challenged by the Government, that the authorities continue to refer to legal provisions that are not in conformity with freedom of association principles and that restrict the full recognition of the right of prison workers to organize. In this regard, the Committee notes that the ILO supervisory bodies have been calling for the necessary measures to be taken to amend the legislative provisions that exclude certain categories of public servants from the right to organize (including the provisions of the Civil Service Act cited by the complainant organization, in particular section 73). In this regard, the Committee has urged the Government as a matter of urgency to ensure that the national legislation of El Salvador is amended in such a way that it recognizes the right of association of workers employed in the service of the State, with the sole possible exception of the armed forces and the police [see Case No. 2085, 323rd Report, para. 173, 327th Report, para. 57, and 328th Report, para. 47]. The Committee must recall, in respect of the specific case that is the subject of the complaint, that prison staff should enjoy the right to organize [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 357]. The Committee expects that the Government will take the necessary measures to ensure full respect of the right of prison staff to organize and refers the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations, and requests that, if deemed necessary, the Government avail itself of ILO technical assistance in this regard.