Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - El Salvador (Ratification: 2006)

The Committee notes the Government’s first report. It further notes the comments made by the International Trade Union Confederation (ITUC), dated 28 August 2007, and the Government’s reply thereto. The Committee also notes the new comments made by the ITUC on 29 August 2008, which refer to acts of discrimination and interference in the functioning of the Labour Inspectorate. The Committee requests the Government to send its observations on these matters.

The Committee also notes the various cases currently before the Committee on Freedom of Association, which refer to matters relating to the application of the Convention.

Article 2 of the Convention. Protection against acts of interference. The Committee observes that, although the Civil Service Act provides for protective measures against acts of interference (prohibition and sanctions), the Labour Code does not contain adequate provisions on this subject for the private sector, given that the Labour Code merely prohibits the organization and functioning of mixed trade unions, i.e. those composed of employers and workers (section 206) and prohibits any person from carrying out acts aimed at preventing the establishment of a trade union, dissolving it or placing it under the control of an employer or employers’ organization. In this regard, the Committee considers that, in order to ensure the application in practice of Article 2 of the Convention in the private sector, legislation should explicitly: (1) prohibit any act of interference; and (2) make express provision for rapid appeal procedures and effective and sufficiently dissuasive sanctions against acts of interference, principally acts which are designed to promote the establishment of workers’ organizations controlled by an employer or employers’ organization, or to support workers’ organizations by financial or other means, with the aim of placing such organizations under the control of an employer or employers’ organization. In these circumstances, the Committee requests the Government to take the necessary measures to adopt appropriate legislative measures to ensure effective protection against acts of interference.

Article 4. Collective bargaining. The Committee notes that the Government indicates in its report that the Ministry of Labour and Social Welfare is carrying out various activities through the General Labour Directorate, aimed at promoting the full development and use of machinery for voluntary bargaining between employers’ and workers’ organizations. Since 2000, training has been given to workers and employers at the national level on social dialogue, workers’ and employers’ rights and collective labour agreements.

The Committee notes that, under sections 270 of the Labour Code (concerning the conclusion of the first collective agreement in an enterprise or establishment) and 106 and 123 of the Civil Service Act, a trade union must have as members no less than 50 per cent of the workers of the enterprise, establishment or institution, in order to be able to initiate the collective agreement or bargain collectively. In this regard, the Committee considers that these provisions do not promote collective bargaining. The Committee considers that if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in the bargaining unit concerned, at least on behalf of their own members (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 241). The Committee requests the Government to take the necessary measures to amend sections 270 of the Labour Code and 106 and 123 of the Civil Service Act in the manner indicated above.

Revision of the collective agreement. The Committee notes that section 276(3) provides that “if the economic conditions in the country or enterprise should change significantly, either party may request the revision of the collective labour agreement, provided that the agreement has been in force for at least one year”. The Committee requests the Government to indicate whether this provision entails the obligation to renegotiate the collective agreement in the circumstances described at the request of one of the parties.

Registration of collective agreements. The Committee observes that, under sections 279 of the Labour Code and 113 of the Civil Service Act, if a collective agreement is submitted to the Ministry of Labour and Social Welfare for registration and this is denied, either party may, if they consider it unjustified, appeal to the Director-General of Labour. The Committee observes that section 279 provides that no appeal may be made against that decision and that section 113 does not contain any provision on this subject. The Committee considers that, in both cases, provision should be made for the possibility of appealing to the judicial authority against the decision of the Director-General of Labour. The Committee requests the Government to take the necessary measures to ensure that the legislation ensures the possibility of appealing to the judiciary against the decision of the Director-General.

Approval of collective agreements concluded with a public institution. The Committee notes that, under sections 287 of the Labour Code and 119 of the Civil Service Act, in order to be valid, these agreements require the approval of the respective ministry and the prior opinion of the Ministry of Finance. In this regard, the Committee requests the Government to provide information on the application of this provision in practice and points out that a ministry’s approval of agreements concluded freely between parties infringes the principle of free and voluntary negotiation under Article 4 of the Convention.

Purpose of the bargaining. The Committee notes that, under section 108, collective bargaining shall cover both salary matters and matters relating to conditions of work. The Committee requests the Government to indicate whether any provision provides for collective bargaining relating to facilities in favour of trade unions.

Article 6. Exclusion of a very wide range of public employees from the guarantees of the Convention. The Committee notes that, in its report, the Government points out that the Civil Service Act establishes the procedure for the establishment, functioning and dissolution of trade unions of public employees. The Committee observes, however, that, under section 4(l) of the Civil Service Act, amended by Legislative Decree No. 78, of August 2006, numerous public sector workers are excluded from the administrative career and hence from the guarantees of the Convention (collectors, treasurers, cashiers, administrators, warehouse security staff, warehouse personnel and auditors in any public institution department). In this regard, the Committee recalls that the only possible exceptions from the guarantees of the Convention refer to the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). The Committee recalls that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as officials acting as supporting elements in these activities), who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should enjoy the guarantees provided for in the Convention. In these circumstances, the Committee requests the Government to take the necessary measures to ensure that workers not engaged in the administration of the State enjoy the guarantees provided for in the Convention.

Declaration of unconstitutionality. The Committee also notes that, in a decision of 31 October 2007, the Constitutional Chamber of the Supreme Court of Justice found that the extension of the right to freedom of association to public employees, who are not included among the holders of that right in the Constitution of the Republic, was unconstitutional (O.J. 203 T. 377 of 31 October 2007). The Committee observes that the Government does not refer to this matter in its report. The Committee regrets that decision of the Constitutional Chamber shortly after the ratification of Conventions Nos. 87 and 98, and requests the Government to ensure the application of the Convention to public employees, including, if necessary, through the reform of the Constitution.

Right to collective bargaining of teachers. Section 2 of the Civil Service Act provides that, due to the nature of their duties, members of the teaching profession are governed by a special Act without prejudice to the social rights contained in the Civil Service Act, which are applicable to them. Taking into account that the Teaching Careers Act does not contain specific provisions guaranteeing the right to bargain, the Committee requests the Government to indicate whether, under section 2 of the Civil Service Act, members of the teaching profession nonetheless enjoy the right to collective bargaining.