Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC) referring to legislative matters. It requests the Government to send its observations thereon.

The Committee also notes a number of cases currently before the Committee on Freedom of Association.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Exclusion of various categories of workers from the guarantees of the Convention. In its previous comments the Committee referred to sections 4 and 73, second paragraph, of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, under which certain public officials and employees and public sector workers are excluded from the guarantees of the Convention. The Committee understands that the abovementioned provisions of the Civil Service Act have been cancelled following a revision of the Constitution and therefore no longer apply. The Committee requests the Government to send it observations on this matter.

The Committee notes that article 47 of the Constitution of the Republic has been amended by Decree No. 33 of 2009. It observes that article 47 provides that the following shall not have the right of association: members of the judiciary, public servants who have authority to make decisions or hold managerial positions, or are employees with duties of a highly confidential nature, private secretaries of high-ranking officials (article 219 of the Constitution), diplomatic representatives (article 236 of the Constitution), assistants of the Public Prosecutor, or persons serving as assistant employees, assistant prosecutors, labour prosecutors and delegates. The Committee recalls that these public employees should enjoy the right to establish and join organizations of their choosing without prior authorization, and requests the Government to take steps to ensure that full effect is given to the Convention in this respect.

The Committee also recalls that in its previous comments it asked the Government to take the necessary steps to ensure that workers in private security firms enjoy the right to establish or join trade union organizations. The Committee notes the information sent by the Government to the effect that the necessary steps will be taken to grant legal personality to the unions representing these workers. The Committee requests the Government to provide information in its next report on any specific measures taken in this regard.

In its previous comments the Committee noted that section 204 of the Labour Code prohibits membership of more than one union. It notes in this connection the Government’s statement that this provision does not apply to public employees as the Labour Code does not apply to this category of workers and the Civil Service Act lays down no such prohibition. The Committee recalls that workers who are engaged, whether in the public or the private sector, in different activities in more than one job should be able to join the corresponding unions and that in any event, workers should be able, if they so wish, to join unions at the branch level and at the enterprise level at the same time. In these circumstances, the Committee once again asks the Government to take the necessary steps to have section 204 of the Labour Code amended to align it with this principle.

Minimum membership. In its previous comments the Committee noted that section 211 of the Labour Code and section 76 of the Civil Service Act set a requirement of at least 35 workers in order to establish a workers’ organization and section 212 of the Labour Code establishes a requirement of a minimum of seven employers in order to form an employers’ organization. The Committee notes the Government’s statement that it has made the commitment, reflected in a report entitled “The labour dimension in Central America and the Dominican Republic, building on progress: improving performance and building capacity” (known as the White Paper), to reform El Salvador’s labour legislation. The amendment of section 211 of the Labour Code is planned in this context. The Committee hopes that the Government’s commitment will be fulfilled shortly and that the reform will include amendment of section 211 of the Labour Code and section 76 of the Civil Service Act so as to reduce the minimum number of workers needed to establish a trade union organization to 25 members, for instance, given the large proportion of small and medium-sized enterprises in the country, and amendment of section 212 of the Labour Code so as to reduce the minimum number of employers required to form an employers’ organization. The Committee requests the Government to report on all developments in this regard.

Requirements for the acquisition of legal personality. In its previous comments the Committee noted that section 219 of the Labour Code provides that in order for trade unions to be legally constituted, within five days of the documentation being submitted to it, the Ministry of Labour and Social Insurance shall request the employer to certify that the founder members are employees. In its previous comments, the Committee expressed the view that in so far as this involves communicating the names of the members to the employer, this provision may give rise to acts of discrimination against workers wishing to establish a union. The Committee notes the Government’s statement that an audit is to be carried out under ILO auspices with a view to revising the administrative procedures for establishing a trade union to make them smoother and more efficient. The Committee hopes that in following up on the audit, the Government will take the necessary steps to amend section 219 of the Labour Code, for example by establishing that the Ministry of Labour will carry out the certification by checking the list of employees of the enterprise or establishment provided by the employer.

Waiting period for the establishment of a new union. In its previous comments the Committee noted that section 248 of the Labour Code provides that “further steps may not be taken to establish another union until six months have elapsed since the previous application”. The Committee notes in this connection that, according to the Government, the commitments made in the abovementioned White Paper include amendment of section 248. The Government states that all necessary efforts will be made to abolish the waiting period for making a further application to establish a union. The Committee hopes that section 248 of the Labour Code will be amended in the near future so as to eliminate the waiting period required for a further application to establish a union. It asks the Government to report on all developments in this regard.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. In its previous comments the Committee noted that article 47(4) of the National Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act lay down a requirement to be “a national of El Salvador by birth” in order to hold office on the executive board of a union. The Committee notes the Government’s statement that it will provide information in due course on the progress made in amending the abovementioned provisions. The Committee recalls that foreign workers should be allowed access to trade union office at least after a reasonable period of residence in the host country (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). In these circumstances, the Committee once again asks the Government to take the necessary steps to have article 47(4) of the Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act amended so as to allow foreign workers to be elected to trade union office as indicated above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. In its previous comments, the Committee noted that under section 529 of the Labour Code, decisions regarding strikes require an absolute majority of the workers in the enterprise or establishment affected by the dispute, and that if the requirement is met, the decision shall be binding for all the personnel. Otherwise, if the decision obtains less than an absolute majority, the union and the workers who are active in the dispute shall be required to respect the freedom to work of those not participating in the strike. In its previous comments the Committee asked the Government to take the necessary steps to amend section 529 so that, when the decision is taken to call a strike, only the votes cast are taken into account and the principles 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 are recognized even where the strike has been decided upon by an absolute majority of the workers. The Committee notes that the Government indicates that section 529, third paragraph, respects the right to work of non-strikers and emphasizes that the second paragraph provides that, if the strike is decided upon by a majority of the workers affected by the dispute, the decision shall be binding on all the staff. The Government explains that the purpose of this provision is to guarantee the effects of the strike as a collective work stoppage agreed on by a plurality of workers. The Committee observes that the Government does not refer to the majorities required for strikes. The Committee recalls that, if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level [see General Survey, op. cit., paragraph 170]. The Committee further recalls that 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 must be recognized even in cases where the strike has been decided upon by an absolute majority of the workers. The Committee requests the Government to take the necessary steps to have section 529 of the Labour Code amended so that when a decision is taken to call a strike, only the votes cast are taken into account, and so that 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 are recognized even where the strike has been decided upon by an absolute majority of the workers.

Declaring strikes unlawful. In its previous comments the Committee noted that section 553(f) of the Labour Code establishes that strikes shall be declared unlawful “where inspection shows that the striking workers do not constitute at least 51 per cent of the personnel of the enterprise or establishment”. It took the view that this provision is not only inconsistent with section 529, second paragraph, which establishes the right to strike of unions representing at least 30 per cent of the workers in the establishment or enterprise, but also places too great a restriction on the exercise of the right to strike. While noting the Government’s statement that it will report on any progress made in this area, the Committee hopes that in the near future the Government will take the necessary steps to amend or abolish section 553(f) of the Labour Code.

Purposes of the strike. In its previous comments, the Committee asked the Government to indicate whether workers and their organizations may have recourse to strike action as a means of protection against the Government’s economic and social policy, since section 528 of the Labour Code allows a strike to be declared only for the following purposes: the conclusion or revision of the collective labour agreement; the conclusion or revision of the collective labour agreement and the defence of the common occupational interests of the workers. The Committee notes in this connection the Government’s statement that, according to section 528, third paragraph, workers may resort to strike action for “the defence of the common occupational interests of the workers”, and that they may thus resort to strike action as a means of protection against the Government’s economic and social policy. Strike action for these purposes may be taken by occupational unions and by unions of independent workers which are directly affected by Government policies.

Essential services. In its previous comments the Committee noted that section 553(a) of the Labour Code provides that strikes shall be declared unlawful when they are called in essential services and that section 515 (on compulsory arbitration) provides that essential services are deemed to be services the interruption of which would endanger or threaten to endanger the life, personal safety or health or the normal conditions of existence of the whole or part of the population. Bearing in mind that the Labour Code does not specify which services are deemed to be essential, the Committee asks the Government to specify the services which are considered essential, to indicate who determines them, and to indicate what are considered to be the “normal conditions of existence”. The Committee notes in this connection the Government’s statement that the Labour Code does not specify a number of essential services but merely sets the parameters for determining which services are essential, in accordance with section 515, particularly the third paragraph, which provides that to qualify a service as essential, the circumstances of each case must be taken into account. The Government adds that the Director-General of Labour determines whether a service is essential, being the authority competent to settle the dispute. In these circumstances, the Committee asks the Government to provide information on the services that the Director-General of Labour has so far qualified as essential.

Minimum services. In its previous comments the Committee noted that section 532 of the Labour Code provides that within seven days of the commencement of a strike, the Director-General of Labour, at the request of one of the parties, “and after notification of the union that has called the strike”, shall determine the number, category and names of the workers who shall remain in the enterprise. The Committee asked the Government to indicate whether the notification of the union which called the strike is for the purpose of its participation in determining minimum services and whether the decision determining the minimum services is subject to judicial review enabling a prompt ruling to be obtained. The Committee notes in this connection the Government’s statement that the intent of the provision is to include the union that called the strike in the determination of minimum services. Such decisions may be challenged before a judicial body as established in the Procedural Labour Law, Book 4, which provides that rulings may be challenged by review, appeal and appeal for annulment.

Public servants. In its previous comments the Committee referred to article 221 of the Constitution which prohibits strikes by public and municipal workers. The Committee pointed out that prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State, and asked the Government to take the necessary steps to have article 221 so amended. It notes the Government’s statement that it has taken note of the Committee’s observation and will provide information in due course on all progress made in this matter. The Committee requests the Government in its next report to provide information on any developments regarding the amendment of article 221 of the Constitution.

Article 6. Right of workers’ and employers’ organizations to establish federations and confederations. In its previous comments the Committee noted that section 259 of the Labour Code provides for delegates of the Ministry of Labour and Social Insurance or of the public notary to participate in the constituent assembly of a federation or confederation to draw up the report indicating all the decisions taken. The Committee asked the Government to consider amending the legislation so as to make the presence of these representatives optional for the trade union organization. The Committee notes the Government’s statement that it has taken note of the Committee’s observation and will report on all progress made in this area. The Committee requests the Government to provide information in its next report on all developments regarding the amendment of section 259 of the Labour Code.

Public sector. In its previous comments the Committee requested the Government to indicate whether unions of public employees may establish federations and confederations and, if so, whether they are able to affiliate with central organizations which also include private sector workers. The Committee notes in this connection the Government’s statement that although such a possibility is not laid down in the Civil Service Act, this does not mean that the workers governed by the Act will be denied the right to establish federations and confederations. There being no specific provisions on the establishment of federations and confederations in the Act, the Labour Code has been applied. The Committee also notes the Government’s statement that although statutes for trade unions in public institutions recognizing such a right have already been approved, no federations of public servants have as yet been established. The Committee notes the Government’s statement that private sector and public sector workers may not group together in central organizations because they belong to different categories. The Committee recalls in this connection that it is acceptable for first‑level organizations of public officials and employees to restrict membership to these workers, provided that the first-level organizations are free to join federations and confederations of their choosing including organizations made up of public sector workers and private sector workers. The Committee requests the Government to take the necessary steps to ensure that organizations of public employees may join federations, confederations and central organizations of their choosing including organizations whose membership includes private sector workers.