Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - El Salvador (Ratification: 1995)

The Committee notes the observations of the National Business Association (ANEP), received on 4 September 2016 and endorsed by the International Organisation of Employers (IOE).

Article 2 of the Convention. Adequate procedures. Effective tripartite consultations. The Government reiterates the information provided in its 2015 report on the measures taken to ensure that the tripartite consultations required by the Convention are actually conducted. Documents are sent to all the confederations and federations that are active at the time of the consultation, the representatives of employers’ organizations who are members of the Higher Labour Council, and the government representatives concerned by the subject under consultation. The Committee recalls that in order to be “effective”, consultations must be conducted before a decision is taken, irrespective of the nature or form of the procedures followed; moreover, the representatives of employers and workers must have before them sufficiently in advance all the elements necessary to form an opinion. The Committee further recalls that consultation through written communications should be undertaken only “where those involved in the consultative procedures are agreed that such communications are appropriate and sufficient” (see 2000 General Survey on tripartite consultations, paragraph 71). The Committee hopes that the circumstances which have been hindering the operation of the Higher Labour Council for three years will be resolved rapidly. The Committee requests the Government to describe in detail the measures taken, while awaiting the reactivation of the Higher Labour Council, to ensure that the consultations held are effective.

Article 3(1). Election of representatives of the social partners to the Higher Labour Council. ANEP expresses its concern at the lack of will on the part of the Government to give effect to the Committee’s recommendations. It indicates that the Higher Labour Council has not met for over three years, and that there is no sign of any action being taken by the Government for its reactivation. The Government indicates that, as part of its efforts to overcome the impasse resulting from the failure to designate workers’ representatives on the Higher Labour Council, and further to the conclusions adopted by the Conference Committee on the Application of Standards in June 2015 on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), it accepted ILO technical assistance. The assistance provided included a mediation process carried out from 1 to 3 February 2016 by an external consultant. In accordance with the mediator’s recommendations, in early April the Government initiated a dialogue process, as suggested. As there is no mechanism for determining the representative nature of trade unions, the Government asked the organizations concerned to form a transitional committee to review the rules of procedure of the Higher Labour Council relating to the designation of members from workers’ organizations. Some trade unions rejected the proposed solution, indicating that the rules of procedure could only be reviewed in the Higher Labour Council. The Government informed the employers’ organizations represented on the Higher Labour Council of the outcome of its efforts. The Committee notes the information provided by the Government concerning the 2016 decision of the Constitutional Chamber of the Supreme Court of Justice in amparo appeal No. 951-2013. In that case, the Court set aside the appeal, concluding that the Minister’s actions in exhorting the trade unions to put forward a single list of representatives to the Council did not violate the right to freedom of association, and was therefore not unconstitutional. The Court observed that the Ministry of Labour was nevertheless under the statutory obligation to implement and support social partnership and tripartite participation in dealing with situations that posed an obstacle to the functioning of the Higher Labour Council. The Committee refers to its comment on Convention No. 87 and reiterates its call for the Government and employers’ and workers’ organizations to endeavour to promote and reinforce tripartism and social dialogue so as to ensure the operation of the Higher Labour Council. The Committee requests the Government to report any developments in this regard.

Article 5(1)(b). Tripartite consultations on the submission to the Legislative Assembly of the instruments adopted by the International Labour Conference. In response to the Committee’s request for information regarding the tripartite consultations held on the submission of instruments, the Government refers to a meeting held on 7 July 2016 and a workshop on 31 October 2016, in which the scope of the obligation concerned, and the list of instruments pending submission to the Legislative Assembly, were discussed. The Government adds that it plans to: validate the procedure with representatives of the competent institutions in order to examine the possibility of regulating the process; prioritize the instruments to be submitted as soon as possible; continue awareness-raising activities; and submit a report to the ILO describing the progress achieved. The Committee hopes that the Government will soon be in a position to report on the results of the tripartite consultations held on the proposals to be submitted to the Legislative Assembly with regard to the submission of the 58 instruments adopted by the Conference between 1976 and 2015.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]