Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

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

The Committee notes the Government’s replies to the previous observations of the International Trade Union Confederation (ITUC).

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee emphasized the importance of reforming penalties against anti-union discrimination in order to ensure their dissuasive effect. The Committee notes that the Government: (i) states that the fines that can be imposed for violations of labour standards (such as anti-union discrimination) are very low (up to US$57.14 per violation), even compared with the penalty system on risk prevention in the workplace (which ranges from 4 to 28 minimum wages); and (ii) reports that, although proposals for reforms to increase the amount of fines related to labour standards have been presented since 2014, the Legislative Assembly has not yet issued an opinion. Regretting the lack of progress in this regard and reiterating the importance of the fines imposed in the event of anti-union discrimination being of a dissuasive nature, the Committee requests the Government, following tripartite consultation, to take effective measures to establish a dissuasive penalty system, and firmly hopes to be able to note progress in the near future.

Furthermore, in its previous observation, the Committee highlighted 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. The Committee notes that the Government once again provides information on the existing legal framework, indicating that currently the staff of the municipal authorities can submit complaints to the Counsel General’s Office and Office of the Human Rights Advocate and Attorney General’s Office; reiterating that Ministry of Labour and Social Welfare should refrain from carrying out inspections among the municipal authorities (with the exception of inspections relating to the General Act concerning occupational hazard prevention); and noting the need to amend the applicable legislation. In this respect, the Committee notes that the Committee on Freedom of Association requested the Government, in consultation with the social partners from the sector, to take the necessary steps, including legislative measures if necessary, to ensure that the workers in the municipal authorities have access to adequate protection mechanisms against acts of anti union discrimination (see case No. 3284, report No. 389, in which the Committee on Freedom of Association referred the legislative aspects of the case to the present Committee). Recalling its previous comments within the framework of the application of the present Convention and the Labour Relations (Public Service) Convention, 1978 (No. 151) on the need to introduce legislative reforms to ensure that all public workers covered by those Conventions enjoy adequate protection against anti-union discrimination, the Committee requests the Government to, in consultation with the social partners from the sector, revise the legal framework to ensure that the workers in the municipal authorities have access to adequate protection against acts of anti union discrimination, and to keep it informed of any developments 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 them into conformity with Articles 2, 4 and 6 of the Convention:

• – acts of interference: section 205 of the Labour Code and 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 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 the Government’s indication that it plans to address these recommendations in the Higher Labour Council, which has recently been reactivated, and requests the technical assistance of the Office in this regard. Hoping to be able to note progress in the near future and noting that the Government requests the technical assistance of the Office, the Committee urges the Government to, with prior tripartite consultation, take the necessary steps to ensure conformity of the above provisions with the Convention.

Application of the Convention in practice. The Committee notes the information provided by the Government on the state of collective bargaining in the country, indicating that: (i) there are a total of 175 registered collective agreements, 133 of which are in force; and (ii) a total of 81,487 workers are covered by collective bargaining. Taking due note of this information, the Committee requests the Government to continue providing information on the number of collective agreements signed and in force, the sectors concerned (detailing the agreements of the public sector and of the education system) and the number of workers covered by those agreements, as well as on any measures adopted to promote the full development and use of collective agreements under the Convention.