Effect given to the recommendations of the committee and the Governing Body - Report No 323, November 2000

Case No 1874 (El Salvador) - Complaint date: 12-FEB-96 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 57. The Committee last examined this case at its meeting in June 1997 [see 307th Report, paras. 30-32, approved by the Governing Body at its 269th Session (June 1997)], when it urged the Government: (1) to take the necessary steps so that the legislation guarantees the right to establish trade union organizations in the public sector; (2) to recognize the transformation of the Nursing Personnel Craft Union of El Salvador into an industrial trade union; and (3) to make reparation for the acts of anti-union discrimination committed in the Rosales Hospital (reinstate the trade union officials who were transferred and ensure that no worker is threatened with dismissal if he or she does not resign from the General Industrial Trade Union of Health Workers (SIGESAL)).
2. 58. In a communication dated 22 May 2000, the General Industrial Trade Union of Health Workers (SIGESAL) states that the Government has not carried out the Committee's recommendations.
3. 59. In a communication dated 10 August 2000, the Government: (1) refers to article 47 of the Constitution of the Republic, which guarantees the right of private employees and those in autonomous official institutions the right to associate freely. The Government states further that sections 204 ff. of the Labour Code clearly set out which workers have the right to associate freely to defend their economic, social and professional interests by forming trade unions or professional associations of workers; these do not include the workers of the Rosales National Hospital, since they are directly employed by the central Government and are governed by the Salaries and General Budget Act, and they are therefore not protected by the Labour Code, pursuant to the distinction drawn in section 2 of the Code; the Government would appreciate it if the Committee would offer it ILO technical assistance; (2) points out that the Nursing Personnel Craft Union of El Salvador, as its name indicates, is a craft union; it was established as a union of only nursing personnel, i.e. those caring for patients, and these were accordingly granted legal personality as such; the most recent lists of members of this union included watchmen, metalworkers, plumbers, messengers, secretaries and a few nurses and other persons in different occupations, which led to a degeneration of the union's founding principle and nature and prevented it from complying with section 209 of the Labour Code, which is required in order for it to function in accordance with the law and its own by-laws; this is why its executive board was not authorized to take up office; an appeal was lodged but was rejected on grounds that it was unfounded; and (3) states that it is important to reiterate that the administration of Rosales National Hospital has not taken reprisals against its workers for joining the abovementioned union, but that the transfers were carried out as a result of a study which identified different areas that needed appropriate human resources to carry out their activities in the best possible manner in order to offer a better service to users; moreover it should be explained that the transfers took place in accordance with the second paragraph of section 37 of the Civil Service Act which states as follows: "Officials or employees may be transferred to a similar post even without their consent at the convenience of the public or municipal administration, provided that the transfer is within the same locality."
4. 60. The Committee regrets that despite the time which has elapsed no steps have been taken to comply with the recommendations it formulated in this case at its meeting in June 1997. It reiterates once again that "all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members" and "protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker" [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 206 and 695]. In these circumstances, the Committee finds itself obliged to repeat its recommendations formulated during its last examination of the case and requests the Government to keep it informed of any steps taken to comply with them.