Interim Report - Report No 393, March 2021

Case No 3258 (El Salvador) - Complaint date: 28-OCT-16 - Active

Allegations: The complainant organizations allege, on the one hand, the imposition of arbitrary conditions for registering trade union executive committees and the issuing of accreditation to their members and, on the other hand, irregularities in the appointment of worker representatives in a number of tripartite bodies

1. 367. The Committee examined this case (presented in 2016) at its meeting in June 2019, when it presented an interim report to the Governing Body [see 389th Report, paras 319–346, approved by the Governing Body at its 336th Session].
2. 368. The Government sent its observations in a communication dated 9 February 2021.
3. 369. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. Previous examination of the case

1. 370. In its previous examination of the case in June 2019, the Committee made the following recommendations [see 389th Report, para. 346]:
   • (a) The Committee refers to its conclusions in Case No. 3136 regarding the requirement to be Salvadoran by birth and again expresses the hope that the Government will take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom;
   • (b) The Committee requests the Government to take appropriate steps to ensure that, irrespective of the worker’s type of contract, trade unions may freely appoint members of their executive committees. The Committee requests the Government to keep it informed in this respect;
   • (c) The Committee requests the Government, in consultation with the most representative trade union organizations, to take the necessary steps to review the rules applicable to the registration of executive committees in order to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process. Reminding the Government that it can avail itself of ILO technical assistance, the Committee requests the Government to keep it informed in this regard;
   • (d) The Committee requests the Government, in consultation with the organizations concerned, to expedite the pending registrations of the executive committees of the trade unions mentioned in this case. The Committee requests the Government to keep it informed in this regard;
   • (e) With regard to the suspension of the Higher Labour Council, the Committee refers to its recommendations in Case No. 3054 and urges the Government to reactivate the Higher Labour Council as soon as possible; and
   • (f) As for the alleged irregularities in the appointment of worker representatives to the National Minimum Wage Council and the Housing Social Fund, the Committee urges the Government to respond without delay to the allegations made by the complainant organization and expresses the hope that the Government will ensure that the appointment of worker representatives to tripartite bodies will be based on objective, precise and pre-established criteria on representativeness, and that any dispute as to the appointment of those representatives will be resolved by an independent body. Regretting that this situation has persisted for years, and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.

B. The Government’s reply

1. 371. In its communication dated 9 February 2021, the Government indicates that, in accordance with article 256 of the Labour Code, the Ministry of Labour and Social Welfare is responsible for supervising trade union organizations, in order to verify whether they comply with the rule of law in carrying out their activities, and refrains from any form of intervention designed to limit the rights and guarantees enshrined by the laws for the benefit of trade unions. The Government indicates that, on that basis, the principles have been established for the supervision of rights of the persons who are members of trade union management committees, beginning with the phase of registration and verification of the person who forms part of the workers’ representatives on the management committee. For this purpose, the appropriate means is the Single Identity Document, as well as any instrument with which the employment relationship can be verified. The Government indicates that since 2015 the management committees of the National Confederation of Salvadoran Workers (CNTS) have been registered without delay and within the legal deadline. The Government has attached certified copies of the records of registration of those committees.

C. The Committee’s conclusions

1. 372. The Committee recalls that this case refers, firstly, to the alleged imposition of excessive and arbitrary conditions for registering and recognizing the credentials of trade union executive committees (such as the submission of copies of individual identity documents and payslips in order to verify whether members of executive committees are Salvadorans by birth or to verify the worker’s type of contract), and the subsequent refusal of the labour administration to register the executive committees of a number of trade union organizations, thus preventing their members from being elected to various tripartite bodies. This includes the executive committees of 24 trade unions affiliated with the Trade Union Council of El Salvador (CONSISAL), namely the Independent Union of Agricultural Workers in the San José de la Montaña Canton (SITRAM), the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC), the Independent Union of Commercial Workers in Colonia Las Flores (SITRACOF), the Independent Union of Retail Workers in Jerusalén (SICOJ), the Independent Union of Agricultural Workers in the El Espino Canton (SITRACE), the Union of Independent Craftspersons in Santa María Ostuma (SINAISMO), the Trade Union Federation of Registered Workers of El Salvador (FESTRAIS), the Trade Union Federation of Agricultural and Commercial Workers (FESTRAC), the Western Trade Union Association of Small Retailers (ASPECO), the Association of Merchant Seafarers of El Salvador (AMMS), the Independent Union of Agricultural Workers in the Tepeagua Canton (SITRACT), the Union of Agricultural Producers in the San Felipe Canton (SIPROACASF), the Union of Independent Commercial Workers in Nueva San Salvador (SITICONSS), the Union of Agricultural Workers in the Achichilco Canton (SINTRACA), the Union of Commercial Workers in La Unión (SITRACUN), the Union of Agricultural Workers in the La Labor Canton (SITRACL), the Independent Union of Artisanal Fishers in Zacatecoluca (SINPEZ), the Independent Union of Professionals and Technicians of El Salvador (SIPROTES), the Union of Agricultural Producers in Santo Domingo (SIPROASD) and the Union of Small Agricultural Producers in the Galeano Canton (SIPEACG), the Union of Independent Commercial Workers in Puerto de la Libertad (SITRAINCOP), the Union of Agricultural Producers in the La Esperanza Canton, San Sebastián District (SIPROACESS), the Union of Commercial Workers in Colonia Agua Caliente (SITRACCAC) and the Independent Union of Agricultural Workers in the Chaperno Canton (SITRACH). The case also refers to alleged irregularities in the appointment of worker representatives in tripartite bodies such as the National Minimum Wage Council and the Housing Social Fund, as well as the Higher Labour Council.
2. 373. The Committee notes that in its communication the Government refers to the documents that must be submitted for the purposes of requesting the registration of management committees and states that, since 2015, the management committees of the CNTS have been registered without delay and within the legal deadline. In this regard, the Committee recalls that the last time it examined the case it made specific recommendations in relation to the excessive requirements for the registration of trade union management committees. It also recalls that the last time it examined the case, it had noted that the CNTS management committees had been registered, once the precautionary measures taken by the National Department of Social Organizations of the Ministry of Labour and Social Welfare had been remedied. The Committee notes that the Government has attached certified copies in which it costs the registration of the CNTS management committees between 2015 and 2020. Observing, however, that the Government has not sent any information regarding the registration of the management committees of the 24 trade unions that belong to CONSISAL, mentioned in the previous paragraph, or any information relating to the remaining recommendations it made when it last examined the case at its meeting in June 2019 [see 389th Report, paras 319–346], the Committee finds itself obliged to reiterate those recommendations, as follows.

The Committee’s recommendations

1. 374. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee refers to its conclusions in Case No. 3136 regarding the requirement to be Salvadoran by birth and again expresses the hope that the Government will take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom.
   • (b) The Committee requests the Government to take appropriate steps to ensure that, irrespective of the worker’s type of contract, trade unions may freely appoint members of their executive committees. The Committee requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government, in consultation with the most representative trade union organizations, to take the necessary steps to review the rules applicable to the registration of executive committees in order to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process. Reminding the Government that it can avail itself of ILO technical assistance, the Committee requests the Government to keep it informed in this regard.
   • (d) The Committee requests the Government, in consultation with the organizations concerned, to expedite the pending registrations of the executive committees of the trade unions mentioned in this case. The Committee requests the Government to keep it informed in this regard;
   • (e) With regard to the suspension of the Higher Labour Council, the Committee refers to its recommendations in Case No. 3054 and urges the Government to reactivate the Higher Labour Council as soon as possible.
   • (f) As for the alleged irregularities in the appointment of worker representatives to the National Minimum Wage Council and the Housing Social Fund, the Committee urges the Government to respond without delay to the allegations made by the complainant and expresses the hope that the Government will ensure that the appointment of worker representatives to tripartite bodies will be based on objective, precise and pre-established criteria on representativeness, and that any dispute as to the appointment of those representatives will be resolved by an independent body. Regretting that this situation has persisted for years, and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.