Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - El Salvador (Ratification: 1995)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1(1)(a) of the Convention. Discrimination on the basis of sex. Pregnancy and maternity. In its previous comments, the Committee requested the Government to take the necessary steps to ensure that women workers enjoy effective protection against dismissal and any other acts of discrimination on the grounds of pregnancy or maternity in the public and private sectors, including in the maquila (export processing) sector, and to supply information on any developments in this respect. The Committee also requested the Government to continue providing information on the number of complaints filed, indicating the grounds for the complaints, sectors concerned, proceedings instituted, remedies granted and penalties imposed. The Committee notes the Government’s indication in its report that, in June 2018, the Labour and Social Welfare Committee of the Legislative Assembly approved an amendment to section 113 of the Labour Code granting a six-month employment guarantee after the worker returns from the four months of maternity leave, in the public, municipal or private sectors, and establishes fines of three to six months of the minimum wage for non-compliance. The Government also indicates that labour inspections are conducted with the objective of providing protection for women against violations of their rights: in 2015, some 117 inspections were conducted in the private sector, and 23 in the maquila sector; in 2016, some 131 inspections were conducted in the private sector, and 30 in the maquila sector; and, in 2017, a total of 141 inspections were conducted in the private sector and 21 in the maquila sector. The Government adds that, 20 pregnant women were reinstated in their posts in 2015; 22 in 2016; 25 in 2017; and one in 2018. The Committee welcomes the reported legislative initiative that would grant greater job security to women up to six months after the period of maternity leave.The Committee requests the Government to provide information on the announced reform of section 113 of the Labour Code. In addition, observing that the Government reported the reinstatement of several pregnant women, the Committee requests the Government to provide information on the scope of the protection in law of pregnant women and to continue providing information on the number of complaints alleging discrimination on pregnancy or on maternity, the sectors concerned, violations found, remedies granted and penalties imposed.

Sexual harassment. In its previous comments, the Committee requested the Government to take the necessary measures without delay to include in the Act on the prevention of work-related risks of 2010 provisions that: (i) define and prohibit both quid pro quo and hostile work environment sexual harassment; (ii) provide access to remedies for all men and women workers, men and women to report such harassment; and (iii) provide for sufficiently dissuasive sanctions and adequate compensation. In this respect, the Committee notes the Government’s indication that section 7 of the Act of 2010 defines sexual harassment as a psychosocial risk, and section 29 of the Labour Code prohibits sexual harassment by employers. The Government reports that the labour inspectorate has a procedure to impose fines for acts of this nature, with the possibility of bringing charges against the offender, and a protocol on complaints of sexual and workplace harassment. The Government reports that, in 2015, one inspection was conducted into harassment; none in 2016; and five in 2017. Over the years, the Committee has consistently expressed the view that sexual harassment, as a serious manifestation of sex discrimination and a violation of human rights, is to be addressed within the context of the Convention. Given the gravity and serious repercussions of sexual harassment, the Committee recalls the importance of taking effective measures to prevent and prohibit sexual harassment in employment and occupation (see 2012 General Survey on the fundamental Conventions, paragraph 789).While noting the information provided by the Government, the Committee once again requests the Government to take the necessary measures to include in the Act on the prevention of work-related risks of 2010 provisions that: (i) define and prohibit both quid pro quo and hostile work environment sexual harassment; (ii) provide access to remedies for all men and women workers; and (iii) provide for sufficiently dissuasive sanctions and adequate compensation. The Committee also requests the Government to continue sending information on: (i) any measures adopted to prevent sexual harassment and to raise awareness among workers and employers; and (ii) the number of complaints concerning sexual harassment in employment and occupation received, the penalties imposed and compensation awarded.

Article 1(1)(b). Real or perceived HIV status. In its previous comments, the Committee noted that Decree No. 611 of 2005 reforming the Labour Code introduced a new section 30, which prohibits discrimination against workers on the basis of their HIV status and also prohibits compulsory HIV testing as a condition for acquiring or retaining employment. However, the Committee noted that the Public Service Act of 1961 provides that any person who suffers from an infectious/contagious disease may not enter the administrative career service. In this regard the Government indicates that, in December 2016, a Plan on monitoring the labour rights of people with HIV was launched with the slogan “Inspection with Inclusion”. The Government reports that two inspections were conducted in this context in 2016 and none in 2015 and 2017.The Committee notes this information and requests the Government to take the necessary steps to amend the Public Service Act of 1961 in order to provide adequate protection for all workers in the public sector against discrimination on the basis of real or perceived HIV status, with such protection including the prohibition of compulsory HIV testing as a condition for acquiring or retaining employment. The Committee requests the Government to report the measures adopted to implement the “Inspection with Inclusion” plan and the results achieved.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.