Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the Government’s comments in response to the observations of the International Trade Union Confederation (ITUC) received in 2014 and 2016. In relation to the allegations of anti-union discrimination against staff of the municipal authorities, the Committee notes the Government’s statement that no investigations are conducted by the Ministry of Labour and Social Security, since the Labour Code does not apply to this category of public servants. The Government also states that the national jurisprudence has established that the Ministry of Labour should refrain from carrying out inspections into violations of labour rights among the municipal authorities as they do not have the competence in this regard. Lastly, the Government indicates that it has planned to meet with the municipal authorities to inform them of the complaints before the ILO and to initiate a dialogue process with a view to protecting the rights of affiliated workers. While noting the actions envisaged by the Government, the Committee highlights that the fact that the staff of the municipal authorities is not covered by the Labour Code does not free the Government of its responsibility to guarantee this category of workers adequate protection against anti-union discrimination. Recalling its previous comments in the framework of the application of this Convention and the Labour Relations (Public Service) Convention, 1978 (No. 151) on the need to reform the Civil Service Act to ensure that all public employees covered by these Conventions enjoy adequate protection against anti-union discrimination, the Committee requests the Government to take, in the near future, all necessary measures to ensure that, first, investigations are conducted by the competent authorities into the allegations of anti-union discrimination reported by the ITUC and, where necessary, effective penalties are imposed and, second, the legal framework is revised as indicated. The Committee requests the Government to provide information in this regard. It requests the Government to send its comments on the allegations of anti-union discrimination in the aviation civil service and in an enterprise of the bakery sector.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes the Government’s indication that the bill on the new system of fines has not been adopted. Recalling the importance of the fines imposed in the event of anti-union discrimination being of a dissuasive nature, the Committee requests the Government to take effective measures to establish a dissuasive penalty system and expects that it will soon be able to adopt the reforms envisaged in this regard.

Articles 2, 4 and 6. Legislative issues pending for several years. The Committee recalls that for several years it has been making comments on certain provisions of domestic law with the aim of bringing those into conformity with Articles 2, 4 and 6 of the Convention:

• -acts of interference: section 205 of the Labour Code and section 247 of the Penal Code so that the legislation explicitly prohibits all acts of interference under the terms prescribed by Article 2 of the Convention;
• -requirements to be able to negotiate a collective agreement: sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act so that, when no union covers more than 50 per cent of the workers, the right to collective bargaining is explicitly granted to all unions, at least on behalf of their own members;
• -revision of collective agreements: section 276(3) of the Labour Code to ensure that the renegotiation of collective agreements while they are still in force is only possible at the request of both parties concerned;
• -judicial remedies in the event of the denial of the registration of a collective agreement: section 279 of the Labour Code to specify that judicial remedies are applicable against decisions of the Director-General not to register a collective agreement;
• -approval of collective agreements concluded with a public institution: section 287 of the Labour Code and section 119 of the Civil Service Act, which regulate collective agreements concluded with a public institution, to replace the requirement for prior ministerial approval by a provision envisaging the participation of the financial authorities during the process of collective bargaining, and not when the collective agreement has already been concluded;
• -exclusion of certain public employees: section 4(1) of the Civil Service Act so that all public officials who are not engaged in the administration of the State enjoy the guarantees provided for in the Convention.

The Committee notes firstly that the Government refers to the adoption of legislative Decree No. 10 of 2009 which sets forth that all those employees who entered the public administration before 31 January 2009 will receive permanent contracts. The Committee requests the Government to provide further details on the effects of the adoption of the above legislative Decree on the application of the Convention. The Committee notes secondly the Government’s indication that, following an analysis of the labour reforms prepared within the framework of the strategic plan of the Ministry of Labour and Social Security 2014–19, a ministerial commission has been established for the presentation of the reforms to the Legislative Assembly. The Committee hopes that the Government, following consultation with the most representative workers’ and employers’ organizations, will present to the Legislative Assembly, in the near future, the bills on the reforms of the legislative provisions contained in the Labour Code, the Penal Code and the Civil Service Act which have been the subject of its comments for several years. The Committee requests the Government to provide information on any progress in this regard and emphasizes that it could consider the possibility of including these issues in the framework of the technical assistance it had requested as a follow-up to the direct contacts mission regarding the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Application of the Convention in practice. The Committee notes the Government’s information that no collective labour agreements have been concluded with teachers in the public sector and that between 2009 and March 2016, the Ministry of Labour and Social Security registered 43 collective labour agreements, 39 of which are from the private sector and four from the public sector. The Committee notes with concern that the number of collective agreements referred to is very low, particularly when taking into account that, in practice, collective bargaining is carried out in the country at enterprise level. The Committee requests the Government to take measures to promote collective bargaining in all sectors covered by the Convention, including in public education, and to provide information in this respect indicating any proposed collective bargaining agreement in the public education not concluded and the reasons for such results. The Committee also requests the Government to continue providing information on the number of collective agreements signed, the sectors concerned and the numbers of workers covered by those.