Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - El Salvador (Ratification: 2006)

Article 3 of the Convention. Right of workers’ organizations to organize their activities in full freedom and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend article 221 of the Constitution of the Republic so as to limit the prohibition of the right to strike in the public service to officials exercising authority in the name of the State and those who perform their duties in essential services in the strict sense of the term, while recalling that it is also possible to restrict the exercise of the right to strike through the establishment of minimum services in public services of fundamental importance. The Committee notes the Government’s reiteration, once again, that up to now it has not been possible to give effect to the requested proposal to amend article 221 of the Constitution, but that the Committee will be kept informed of any developments in this regard. The Committee once again requests the Government to keep it informed of the initiatives taken to amend article 221 of the Constitution as indicated.

In its previous comments, the Committee requested the Government to take the necessary measures to amend section 529 of the Labour Code to provide that, when a decision is taken to call a strike, only the votes cast are taken into account, and to recognize the principle of the freedom to work of non-strikers and the right of employers and managerial staff to enter the premises of the enterprise or establishment, even in cases where the decision to call the strike has been made by an absolute majority of the workers. In this respect, the Committee welcomed the submission of a draft reform of the Labour Code to the National Assembly in 2015, envisaging the amendment of section 529 so that: (i) only 30 per cent of the votes cast by the workers in the enterprise or establishment are required to be able to call a strike; (ii) the right to work of non-strikers is ensured; and (iii) the right of employers and managerial staff to enter the premises of the enterprise or establishment is guaranteed. The Committee notes that the Government indicates that the draft amendment of section 529 of the Labour Code, presented in 2015, is still being examined by the Legislative Assembly and there is an interest in ILO technical assistance. Hoping that it will be able to observe progress in the near future and reiterating the availability of ILO technical assistance upon request in this regard, the Committee requests the Government to report any developments relating to the amendment of section 529 of the Labour Code.

Declaring strikes unlawful. In its previous comments, the Committee requested the amendment of section 553(f) of the Labour Code, which provides that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel in the enterprise or establishment”. The Committee considered this provision to be inconsistent with section 529(3), under which a strike may be called, respecting the right to work of non-striking workers, with the support of 30 per cent of the workers in the enterprise or establishment – as well as the proposed amendment of section 553(e) of the Labour Code contained in the legislative initiative of 2015 (reducing the majority required to call a strike from 50 to 30 per cent of the workers in the enterprise). Moreover, the Committee considered that the provision excessively restricted the exercise of the right to strike. The Committee observes the Government’s indication that it has taken due note of the Committee’s comments, especially with regard to the existence of a contradiction in the framework of the revision of the Labour Code, but says that, to date, no draft amendment to section 553(f) has been submitted. Once again observing that section 553(f) of the Labour Code amounts to an excessive restriction on the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes, the Committee requests the Government to take the necessary measures to amend this provision as indicated.