Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 375, Juin 2015

1. 283. The complaint is contained in a communication dated 21 November 2013 presented jointly by the General Confederation of Trade Unions (CGS), the Trade Union Council of El Salvador (CONSISAL), the Central American Workers’ Confederation (COCA), the United Confederation of Salvadorian Workers (CUTS), the National Confederation of Salvadorian Workers (CNTS), and 26 trade union federations. These organizations presented additional information and new allegations in a communication dated 19 May 2014.
2. 284. The Government sent new observations in a communication dated 28 October 2014.
3. 285. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 286. In their letter dated 21 November 2013, the CGS, CONSISAL, the Trade Union Federation of Agricultural and Commercial Workers (FESTRAC), the Workers’ Trade Union Federation of El Salvador (FESTRAES), the Trade Union Federation of Integrated Democratic Salvadorian Workers (FESTRAIS), the Trade Union Federation of Miscellaneous Workers (FESTRAD), COCA, the Federation of Construction, Transport and Allied Industry Trade Unions (FESINCONSTRANS), the Salvadorian Christian Campesino Federation (FECCAS), the Federation of United Industrial Associations (FAPU), the Federation of Independent Trade Unions in Transport, Trade and Export Processing (FLATICOM), the Independent Vendors’ Trade Union Federation of El Salvador (FESTIVES), the Industrial and Service Workers’ Trade Union Federation (FESITRISEVA), the Revolutionary Trade Union Federation (FSR), the Federation of Textile and Allied Industry Trade Unions (FESINTEXSICA), the Federation of Industrial Associations of Salvadorian Workers (FAPTRAS), the Federation of Unionized Salvadorian Workers (FETRASS), the Federation of Workers (FGT), CUTS, the CNTS, the Autonomous Central Labour Federation (F-CLAT), the United Federation of Salvadorian Campesino Workers (FUOCA), the Independent Workers’ Trade Union Federation of El Salvador (FSTIES), the Trade Union Federation of the Salvadorian Workers’ Movement (FSMTS), the Autonomous Trade Union Federation of Salvadorian Workers (FSATRAS), the Democratic Workers’ Trade Union Federation of El Salvador (FSTD), the National Trade Union Federation of Salvadorian Workers (FENASTRAS), the General Union Federation of Salvadorian Workers (FUGTS), the Independent Commercial Workers’ Trade Union Federation of El Salvador (FESTICES), the Trade Union Federation of Salvadorian Workers (FSTS), and the United Trade Union Federation of El Salvador (FUSS), allege violations of freedom of association and acts of interference by the public authorities of the Government of El Salvador, specifically by the Minister of Labour and Social Welfare in interfering with and obstructing the appointment of worker representatives to the Higher Labour Council (CST), thereby infringing ILO Conventions Nos 87 and 98 as ratified by El Salvador.
2. 287. The complainants indicate that in February 2013 the term of office of the worker representatives to the CST was coming to an end. Hence, on 16 February, a formal request was sent in writing to the Minister of Labour and Social Welfare and ex officio president of the CST to issue the relevant call for nominations, in accordance with the CST rules of procedure. No reply was received to this request.
3. 288. In view of this situation, the trade union organizations, by a note dated 16 May 2013, sent a second request in writing for the call for nominations to be issued.
4. 289. The representatives of the legally registered and constituted federations and confederations, meeting on 20 May 2013, appointed their representatives (titular and alternate) to the CST, at the same time appointing the adviser for their sector and their representatives on its executive committee, in accordance with section 4(c) of the CST rules of procedure, which provides as follows: “The worker members shall be appointed by the trade union federations and confederations registered at the Ministry of Labour and Social Welfare. Their appointment will be communicated to the Ministry of Labour and Social Welfare.”
5. 290. On 21 May 2013, the federations and confederations duly registered at the Ministry informed the Minister of Labour and Social Welfare of the appointment of the worker representatives so that they could be sworn into their posts and commence their duties.
6. 291. In fact the Minister of Labour and Social Welfare and ex officio CST president failed to swear in the appointed persons as prescribed by law for the sector. On the contrary, he held meetings with trade union officials who shared his party-political ideology, further to which, by a decision of 23 May 2013, he instructed the legally registered federations and confederations, using administrative formalism, that communication had to be effected by the federations and confederations participating in the appointment of representatives, and not by the worker representatives on the CST, giving a deadline of 48 hours to comply with that instruction.
7. 292. A total of 42 out of the 46 legally registered federations and confederations complied with the abovementioned requirement and, on 27 May 2013, within the deadline specified in the abovementioned decision, they sent the Minister of Labour and Social Welfare two lists of worker representatives comprising 16 members (titular and alternate), each one having the support of the corresponding federations and confederations, as shown in the communication in question. It is crucial to mention here that 46 trade union organizations (federations and confederations) are duly registered at the Ministry of Labour and Social Welfare, four of which did not participate in the appointment of representatives, as one of these organizations is without a leader or executive committee, nor does it have judicial or extra-judicial representation to manage its normal operations, and the other three organizations abstained from participating in the process.
8. 293. As a result of the above, only 42 trade union organizations (federations and confederations) participated in the appointment of worker representatives.
9. 294. As a result of the call for nominations and election in question, one of the submitted lists was approved by 33 federations and confederations, which voted for the same 16 representatives (titular and alternate) for the CST. This represents 78.6 per cent of all accredited organizations that took part in the appointments.
10. 295. Despite the existence of a list accounting for the majority of appointments, on the basis of the election referred to in the previous paragraph, the Minister of Labour and Social Welfare held a series of meetings to “give continuity to the procedure for the appointment of worker members to the Higher Labour Council”, in relation to which he issued the call for nominations dated 12 June 2013.
11. 296. Having failed to achieve his objective in the abovementioned meetings, the Minister of Labour and Social Welfare issued a decision dated 2 July 2013, which was notified on 26 July, in which, on the basis of subjective criteria not previously established in the applicable laws and regulations, he did not recognize the appointment of the representatives on the list that obtained the majority of votes and urged the legally registered federations and confederations to reach an agreement as soon as possible and send the Ministry a single list of nominations for the representation of the workers on the CST, the number of representatives to be determined by the CST rules of procedure. The complainants construe this as further obstruction by the Government of the work of the CST aimed at achieving the undemocratic appointment of representatives who share its party-political ideology.
12. 297. With this decision, the Minister of Labour and Social Welfare has not only breached the laws of the country but, blatantly interfering in the decision-making of trade union organizations and thereby violating Article 3 of ILO Convention No. 87, ratified by El Salvador, has based his action on a subjective interpretation of the CST rules of procedure which disregards the fact that, under section 207 of the Labour Code, the organizations are governed by the “democratic principle of the prevalence of majorities”. Even though it is true that section 4 of the CST rules of procedure does not lay down a specific procedure, section 207 of the Labour Code provides that “trade unions may not grant privileges or advantages to any of their members. They shall be governed without exception by the democratic principles of the prevalence of majorities and ‘one person, one vote’ …”. This provision, in conjunction with section 263 of the Labour Code, establishes that the provisions concerning trade unions are applicable to federations and confederations. In other words, the Minister cannot require or urge the workers to submit a single list.
13. 298. The complainants emphasize that their complaint holds even more weight if account is taken of the fact that it had been agreed to hold a plenary session of the CST on 31 July 2013, the agenda for which had included examination of the recommendations made in Case No. 2980 of the Committee on Freedom of Association (a case presented by the employers’ organization), with a view to reaching mutual agreement on ensuring a balanced tripartite composition of the management boards of autonomous institutions, with workers’ and employers’ representatives on tripartite bodies being freely appointed by the organizations.
14. 299. The complainants emphasize that the CST’s inability to function has major consequences for labour legislation and policies, since tripartite consultations are prevented with respect to the discussions concerning the Voluntary Retirement Benefit Bill, the draft Code of Labour Procedure, the Labour and Social Welfare Bill, the draft amendments to the implementing regulations for the Occupational Risk Prevention Act, and the draft amendments to section 198 of the Labour Code (concerning bonus payments).
15. 300. It is clear that the proposal contained in the 2 July 2013 decision of the Minister of Labour has continued to prevent the CST from being properly constituted, this being the body that has the task of discussing the abovementioned draft legislation and the recommendations of the Committee on Freedom of Association made in Case No. 2980.
16. 301. According to the complainants, the Government continues to violate Conventions Nos 87 and 98, in particular the right to elect representatives of the workers and their organizations without interference from the public authorities, even disregarding the fact that the elected representatives had obtained 78.6 per cent of the total votes of the federations and confederations.
17. 302. In their communication of 23 May 2015, the complainants allege that the items of draft legislation referred to in their previous communication (except the draft Labour Code of Procedure) were discussed and adopted by the Legislative Assembly without prior tripartite consultation and without the CST being able to express its views, despite being mandated to institutionalize social dialogue and promote economic and social cooperation.
18. 303. Lastly, the complainants allege that the Minister of Labour and Social Welfare stated publicly that he was in the process of formulating and revising rules concerning the election of worker representatives in the various institutions that have tripartite bodies, with a view to establishing the terms and conditions for the election of trade union representatives to such institutions. The complainants insist that these statements are further evidence of the Minister’s intention to continue his arbitrary and legally unfounded involvement in the free appointment of representatives of the workers’ organizations, thereby explicitly violating the terms of Article 3 of ILO Convention No. 87.
19. 304. The purpose of this interference is to prevent the various proposals for reform of the labour legislation from being the subject of due tripartite discussion, on account of the standstill with respect to the CST.

B. The Government’s reply

1. 305. In its communication of 28 October 2014, the Government indicates that, with regard to the reference made by the complainant organizations to the workers’ request to issue the call for nominations of worker representatives on the CST, the Ministry of Labour and Social Welfare responded on 20 May 2013 to the request from the former worker representatives by publishing a public notice in a leading national newspaper, calling on the trade union federations and confederations registered with the National Department for Labour Organizations at the aforementioned Ministry to submit in writing the names of the persons to be considered as titular and alternate candidates for membership of the CST. As a result of this call for nominations, 28 proposals were received between 27 and 30 May 2013 supporting three lists of nominees, two of which contained 16 persons each and one of which contained two independent candidates, resulting in a total of 34 nominees. This demonstrates that the Minister, as ex officio president of the CST, met the workers’ request.
2. 306. Furthermore, the complainants indicate that they communicated two lists of representatives comprising 16 members (titular and alternate), but that the nominees could not be sworn in on account of there being 34 worker representative proposals instead of the 16 nominations required under section 4 of the CST rules of procedure. In view of the large number of nominations and considering the grounds which had been cited for the nomination of worker representatives, the representatives were asked to make their nominations in accordance with the law and were given 48 working hours to do so. This situation was addressed through the individual presentation by the federations and confederations of the endorsed candidates.
3. 307. Nevertheless, the Trade Union Confederation of Salvadorian Workers (CSTS), the Workers’ Unity Federation of El Salvador (FUERSA), the Federation of Public and Autonomous Institution Unions of El Salvador (FESIPAES), the Workers’ Unity Confederation of El Salvador (CONFUERSA), the Federation of Independent Associations and Trade Unions of El Salvador (FEASIES), the Trade Union Federation of Food, Beverage, Hotel, Restaurant and Agro-Industry Workers of El Salvador (FESTSSABHRA), the Federation of Public Sector Workers’ Unions (FESITRASEP), the Trade Union Federation of Municipal Workers of El Salvador (FESITRAM) and the Trade Union Federation of El Salvador (FESS), submitted various different lists of nominations making it clear that there was no unanimity in the nominations made by the representatives.
4. 308. Accordingly, in the absence of appropriate nominations, a first meeting was held on 6 June 2013 with the representatives of the professional associations which had submitted candidates (31 federations and six confederations) with a view to making the election process more transparent and bringing about a rapprochement between the various federations and confederations in order to reach a joint agreement. In spite of this, two blocs formed at the meeting of 11 June 2013, each supporting a separate list of 16 elected representatives. With no single list chosen, the only agreement reached was as follows: “After two hours of discussion, during which the representatives of the federations and confederations present failed to reach an agreement regarding the nominations, the Minister of Labour issued an official invitation to another meeting at the Vocational Training Centre of the Ministry of Labour and Social Welfare on 18 June 2013.”
5. 309. In the wake of this meeting and given the lack of consensus, the trade union associations were invited on 12 June 2013 to another meeting, which was held on 18 June 2013 and was attended by 37 federations and eight confederations, some participating without having submitted candidate proposals. This meeting resulted in the following agreement: “The representatives of the federations and confederations here present did not reach an agreement regarding nominations, some considering that the nominees on the list with the greatest number of votes should be sworn in.” This demonstrates the willingness of the Ministry of Labour and Social Welfare to create forums for dialogue to enable the workers to reach an agreement on the nominations of the members who would represent them on the CST, despite their inflexibility and lack of willingness to achieve a positive outcome in the election process.
6. 310. Nevertheless, it is important to note that an invitation was issued on 4 July 2013 to a meeting of the CST executive committee and, since the workers had not yet elected any representatives, those who had previously acted as worker representatives (members who had finished their two-year term of office in March 2013) were asked to attend. At that meeting, the worker representatives called on the then Minister of Labour and Social Welfare to swear in the nominees on one of the lists that they had submitted, claiming that this list best represented the interests of the workers as a whole. In response to this demand, the adviser of the CST employers’ group also supported the representatives’ choice of one of the lists submitted, whereby those who had previously represented the workers would continue to perform that function.
7. 311. It should be noted that the nominations submitted by the trade union federations and confederations were concerned with the representation of a total of 172,304 people who, according to the information provided by the various trade union associations, had been union members up to that date. It would therefore seem clear that representativeness is directly proportional to membership numbers and that, accordingly, the larger the number of people registered with the federations that endorse a nomination, the greater the representativeness of the candidate for a seat on the CST. Accordingly, it can be assumed that the appointment of candidates to the aforementioned body should be carried out in accordance with procedures that ensure the democratic participation of the union members. Here it should be reiterated that any selection process should have the consent of all the parties involved to avoid creating a precedent of arbitrarily adopting decisions that lack legitimacy as a result of the de facto exclusion of legitimate parties.
8. 312. Consequently, it should be stressed that if the Ministry had opted for the list submitted by one of the trade union federation or confederation groups, despite the clear opposition of the other group and with a possible disregard for the procedure previously established and approved by all the parties, it would imply that the State was setting itself up as the authority empowered to appoint and remove members of the CST, which runs counter to the provisions of the current legislation of El Salvador.
9. 313. Contrary to the claims made in the complaint, this public administration did not demand a unanimous agreement regarding the nominations to the CST but rather that the procedure for such nominations should have the legitimacy which can only be granted by the sector as a whole, which is not the case here. It should be stressed that at no point has this Ministry refused to recognize the appointment or swearing in of worker representatives, since it is not authorized to interfere in a process which is the exclusive purview of workers and the organizations that represent their interests. Accordingly, in view of safeguarding the interests of the workers in matters under discussion in the CST, a communication dated 2 July 2013 urged the legally registered federations and confederations to reach an agreement and communicate it to the Ministry of Labour and Social Welfare, involving a single proposal indicating the names of the persons who would be appointed to the CST, with a total of eight titular and eight alternate members. This also failed to yield a positive outcome as the workers did not comply with the request.
10. 314. However, the above situation and the current lack of worker representatives on the CST have not signified any obstacle to the holding of tripartite consultations in compliance with the ILO Conventions, in particular the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), since the 2013–14 reports submitted to the ILO on the application of ILO Conventions ratified by the country were sent in September 2014 for consultation to all the federations and confederations legally registered at that time with the National Department for Labour Organizations. It should not therefore be assumed that the failure to swear in worker representatives totally prevented the relevant tripartite consultations from being conducted.
11. 315. This demonstrates that the regulations governing the nomination of members of the CST have been respected at all times and that each of the steps taken by the Ministry of Labour to facilitate the process has been documented, particularly in view of the fact that having a national tripartite body that includes members from representative, independent and democratic workers’ organizations is essential in order to give the latter a forum in which to formalize their mission to effectively defend and protect the interests and rights of the country’s working class, through dialogue and economic and social cooperation as assigned by law to this tripartite body.
12. 316. It is also important to note that one of the main concerns of the Government of El Salvador has been the promotion of dialogue with all national sectors, and that various forums for dialogue on strategic decisions are being established, in relation to matters such as the Government Five-Year Plan 2014–19 and investment for the promotion of employment. This establishes a culture of promoting and exercising rights as a priority and focus for the public service, alongside access to information and transparency.
13. 317. Further evidence of its wish to contribute to a way out of the impasse surrounding the workers’ incapacity to operate within the CST is that the Ministry of Labour and Social Welfare, under the auspices of its Minister, has held ten meetings since June 2014 with various federations and confederations in order to raise awareness of the importance of resolving this problem. These bodies include: the CGS, CONSISAL, COCA, the CSTS, CONFUERSA, FETRASS, FESINCONSTRANS, FESTRAES, FESITRASEP and FEASIES.
14. 318. These meetings were intended as forums in which to reach agreements on a solution involving the creation of an alternative mechanism, since the previous mechanisms had failed to produce favourable effects and results or enable the CST to be constituted. It cannot therefore be claimed that El Salvador has violated ILO Conventions Nos 87 and 98, concerning freedom of association and the right to organize, because the constitutional reforms of articles 47 and 48 of the Constitution also incorporated public-sector trade union federations and confederations in the process to appoint worker representatives to the CST for the 2013–15 period.
15. 319. Regarding the complainants’ allegations concerning the alleged violations of trade union rights and acts of interference by the public authorities, the Government indicates that:
    • – As regards the fact that the Voluntary Retirement Benefit Act and the amendments to section 198 of the Labour Code were adopted without complying with the tripartite consultation procedure established under ILO Convention No. 144 since the CST could not convene, the Committee is informed that on this occasion it was indeed not possible to carry out consultations given that, as of 1 March 2013, the lack of worker representation prevented the CST from meeting, despite all the steps taken by the Ministry of Labour to bring the situation to a satisfactory resolution. Although these reforms were not submitted to consultation, they do not imply a setback for, or a deterioration of, labour rights in national legislation. On the contrary, to avoid complex decisions such as those taken by previous governments regarding retirement procedures, this provides regulations governing voluntary, non-compulsory retirement and caters for workers who so wish to opt for retirement with the possibility of economic compensation and benefits in accordance with the law.
    • – As regards the reform of the Labour Structure and Functions Act, through the Labour and Social Welfare Bill, on which substantive observations were made but were not attached to the preliminary draft presented to the Legislative Assembly, the Committee is informed that tripartite consultations in that regard were carried out through three public consultation workshops on 15 November 2012, 4 December 2012 and 25 January 2013 with the participation of representatives of the three national sectors (workers, employers and Government). However, whether or not to analyse the inputs from the consultations with employers’ and workers’ organizations not represented in the CST and whether or not to include the observations made by each of the sectors in relation to the abovementioned Bill was a decision solely for the labour subcommittee created by the CST under the agreement contained in Act No. 30 of 27 September 2012 concerning the revision of the preliminary draft of the Labour and Social Welfare Bill, which is currently under discussion before the Legislative Assembly.
    • – As regards the CST’s incapacity to examine the draft Code of Labour Procedure, it should be noted that the Ministry did not overstep its competence in this regard, given that the process was carried out by the Supreme Court of Justice and resulted in the presentation of the draft Code of Labour Procedure to the Legislative Assembly on 3 September 2013, as part of its remit under the Constitution of the Republic. The aforementioned preliminary draft Code of Labour Procedure is currently under examination by the Labour Committee of the Legislative Assembly, and the Committee on Freedom of Association will be notified of any progress as soon as the information becomes available. Regarding both preliminary drafts that are currently under legislative analysis and debate, coordination is undertaken between the Ministry of Labour and this body and, in this way, irrespective of whether or not the CST is constituted, consultations will be carried out with both employers and workers.
    • – With regard to the drafting and reform of rules of procedure governing the election of worker representatives within various tripartite institutions, there is no current reform process. Consequently, the claim to that effect in the complaint is incorrect.
16. 320. Lastly, the Government reiterates that in order to be able to swear in the new members of the CST, the submission of a single list of nominations, resulting from a consultation procedure that is recognized by all the parties involved, is essential given that if the public administration were to arbitrarily accept one list over another, it would imply disregarding and trampling on the rights of the associations whose lists were rejected. Hence, the responsibility for settling this dispute lies with the trade union federations and confederations of El Salvador, not with the Government or the employers. This dispute falls outside the competence of this Ministry, which does not mean, however, that it will not take action to promote dialogue and contribute to the reactivation of the CST, avoiding any violation of article 86 of the Constitution of the Republic by requiring public servants to refrain from taking any measures not explicitly permitted by law.

C. The Committee’s conclusions

1. 321. The Committee observes that in the present case the complainant confederations and federations allege that, since 2013, the Government, in particular the Minister of Labour and Social Welfare, has been obstructing and interfering in the appointment of worker representatives to the CST, a tripartite body for consultation and economic and social cooperation in relation to labour matters, including draft legislation in this field, and that this has prevented a number of items of labour legislation being the subject of tripartite consultation prior to processing and adoption by the Legislative Assembly.
2. 322. The Committee notes that, according to the allegations: the purpose of the abovementioned action is to hamper the work of the CST and promote the appointment of worker representatives to the CST who share the Minister of Labour’s party-political ideology; hence the Minister is applying a subjective interpretation to the applicable legal provisions (CST rules of procedure, Labour Code), obliging the 46 registered federations and confederations (47, according to the Government) to submit a single list of eight titular members and eight alternate members, despite the fact that the elections held resulted in the complainants’ list (of eight titular members and eight alternate members) receiving the backing of 33 federations and confederations, namely 78.6 per cent of the total votes of registered organizations that had taken part in the elections, whereas the list put forward by the other bloc comprised only nine organizations; and the authorities thus disregarded the democratic principle of the prevalence of majorities as established in section 207 of the Labour Code and demanded an absolute, unanimous consensus from the 46 confederations and federations.
3. 323. The Committee notes that, according to the complainants, the Ministry of Labour and Social Welfare also publicly announced that it was in the process of formulating and revising the rules of procedure concerning the election of worker representatives to various tripartite institutions. The Committee observes that the Government, in its reply, rejects these allegations and indicates that the rules in question are not being reformed.
4. 324. The Committee notes the Government’s statements to the effect that: (1) it has tried to facilitate the process to appoint eight titular and eight alternate worker representatives to the CST through a public call for nominations made to the legally registered confederations and federations and through various meetings in 2013, with a view to bringing about a rapprochement and creating forums for dialogue to reach an agreement on the presentation of a single proposal; (2) initially, 28 nominations were made involving three different lists; subsequently two different blocs of federations and confederations (representing six confederations and 31 federations) also supported different lists of elected representatives; one of those blocs further considered that the nominees on the list with the greatest number of votes should be sworn in; (3) in this context, on 4 July 2013, the Ministry called a meeting of the CST executive committee and, since the workers had no elected representatives at that time, it called upon the persons who had acted in that capacity during the previous term of office of the CST, which expired in March 2013. At that meeting, the worker representatives called on the Minister to swear in the nominees on one of the lists which they had submitted, claiming that it was the most representative of the interests of the workers as a whole; the employers also supported that list, which meant that the members who had previously represented the workers would remain in office on the CST; (4) however, to enable the new worker members to be sworn in, it was essential to have a single list of nominees submitted through a procedure recognized by all the organizations; the decision of the Ministry of Labour of 2 July 2013 established the need for a single proposal approved by all the trade union organizations and associations which were entitled to participate; (5) the Government justifies this single list on the grounds that it is not authorized to interfere in a process which is the exclusive purview of the trade union organizations; (6) although the CST does not currently have any worker representatives, the Government has sought alternative consultation mechanisms, and in this regard it refers to meetings held with all the legally registered federations and confederations concerning the 2013–14 reports submitted to the ILO, and the establishment of various forums for dialogue with all national sectors in relation to strategic decisions (Government Five-Year Plan, investment for the promotion of employment); and (7) tripartite consultations were also carried out in the public consultation workshops in relation to the Labour and Social Welfare Bill; however, analysis of the inputs from the organizations was the responsibility of the labour subcommittee of the CST and could not, therefore, take place; the draft Code of Labour Procedure was not the work of the Ministry of Labour but was produced by the Supreme Court of Justice; regarding the draft texts that are currently under legislative debate, the Ministry of Labour will carry out consultations with the workers’ and employers’ organizations in its coordination capacity with the legislature; with regard to the Voluntary Retirement Benefit Act and the approval of the reform of section 189 of the Labour Code (concerning bonus payments), it was not possible to hold tripartite consultations but the new legal texts do not constitute a setback for labour rights.
5. 325. The Committee wishes to emphasize, as it has always done, the vital importance that it attaches to social dialogue and tripartite consultation, not only concerning questions of labour law but also in the formulation of public policy on labour, social and economic matters. The Committee notes with deep regret that the CST, the national tripartite body mandated to perform the abovementioned tasks, has not met since 2013 and that the Government’s reply does not refer to any initiatives taken in 2014 or up to the present date to solve the problems arising from the non-appointment of worker representatives to the CST. The Committee observes that, at its June 2013 meeting, when examining a complaint from the leading employers’ organization in the country (Case No. 2980), it already noted problems concerning the absence of tripartite consultation on 17 drafts for the revision of 19 laws relating to autonomous institutions which had not been submitted to the CST, draft legislation in respect of which the Government had acknowledged that it allowed the public administration to select private sector representatives to tripartite bodies. In the present case the Committee emphasizes that the large number of complainant national confederations (four) (plus a Central American confederation) and of complainant national federations (26) shows that the situation concerning social dialogue and the functioning of labour relations is a source of great concern in the country’s trade union movement.
6. 326. The Committee observes that the complainants highlight the fact that the CST rules of procedure do not establish a specific mechanism for appointing worker representatives. However, the Committee observes that ever since the Government has insisted on the need for a single list, it has been impossible in practice for the CST to be constituted and resume its functions. The Committee notes that, in these circumstances, the current rules did not resolve the situation with regard to the disagreement on a single list of worker representatives by all the higher-level trade union organizations and considers that the resolution of this type of conflict between trade unions should be the responsibility of the judicial authority or an independent arbitrator, and not the administrative authority.
7. 327. The Committee draws the Government’s attention to the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1067]. Moreover, the Committee wishes to underline 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 also highlights the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Digest, op. cit., paras 1070 and 1073]. The Committee has emphasized the importance that should be attached to full and frank consultation taking place on any questions or proposed legislation affecting trade union rights [see Digest, op. cit., para. 1074]. The Committee further recalls 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].
8. 328. The Committee underlines the urgent need for in-depth consultations with the confederations and federations in order to establish clear and stable rules for the appointment of worker representatives to the CST (particularly when there is no single list of worker representatives) which respect the criterion of representativeness requests the Government to keep it informed in this regard. Taking into account the urgency of this situation the Committee invites the Government to accept an ILO technical assistance mission to help in finding a solution to the issues raised.