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NORMLEX Home > Country profiles > > Country comments > Texts of comments: El Salvador

Comments adopted by the CEACR: El Salvador

Adopted by the CEACR in 2022

C029 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. National policy. With reference to the implementation of the National Policy to Combat Trafficking in Persons, the Committee notes the Government’s list in its report of various training and awareness-raising activities in relation to trafficking in persons, implemented under the prevention component of the National Policy, and intended for the personnel of the national police, the Office of the Attorney-General and the Ministry of Labour and Social Welfare, migration officials, students in education establishments, and the personnel of the Ministry of Health and the Ministry of Justice and Public Security who are responsible for dealing with victims. In 2018, training was provided to over 6,000 people in the various institutions, and in 2020 over 1,000 public officials received remote training.

With reference to the difficulties experienced by the various public officials in combating trafficking, the Committee notes that the Government refers principally to the need to ensure coordinated action by all the institutions responsible, and to create conditions for victims to be able to participate in the criminal proceedings, be informed of their rights and be able to develop a new life plan.

The Committee requests the Government to continue providing updated information on the implementation and evaluation of all the components of the National Policy to Combat Trafficking in Persons, and on the preparation and implementation of a national plan of action, in accordance with section 22 of the Special Act to combat trafficking in persons of 2014. It also requests the Government to provide information on the activities of the National Council to Combat Trafficking in Persons with a view to ensuring coordination between all the institutions responsible for combating trafficking and strengthening their capacities.

2. Protection and assistance to victims. The Committee takes due note of the provisions of the Special Act on migration and foreign nationality, adopted in 2019, establishing that victims of trafficking may opt for temporary residence for their recuperation or collaboration with the law enforcement services (section 138) and that their repatriation shall be voluntary and with their informed consent, following an evaluation of the risk and the provision of the necessary assistance (section 142).

With reference to the action undertaken by Immediate Response Teams, the Government indicates that their involvement depends on the complexity of the case, the existence of a high risk to health and the risk incurred by the identified victim. Since 2018, Immediate Response Teams have taken action in six cases. The Committee notes the Government’s further indications that: (i) the El Salvador Institute for Women’s Development provided support and psychological assistance to 55 people between 2018 and 2020; (ii) a total of 21 local units have been established to provide assistance to victims of trafficking; and (iii) the budget of the Victims of Trafficking Care Fund has been established.

The Committee also notes that, according to the information provided by the Government, difficulties have been identified in relation to the protection and assistance of victims, including: (i) the inadequate coverage of protection for women victims of trafficking in shelters; (ii) the lack of specialized shelters for men, boys and members of the LGBTI population; (iii) the absence of identity documents for victims; and (iv) the unfounded fear of victims towards the authorities which leads them to dissimulate and refuse the protection measures offered, with them running away from protection shelters in some cases.

The Committee encourages the Government to continue its efforts to provide comprehensive protection and support for victims of trafficking in persons. In this regard, the Committee requests the Government to provide information on the measures adopted to strengthen the shelters for victims of trafficking in persons and to assist victims who do not have identity documents. Please also provide information on the operation of the Victims of Trafficking Care Fund, envisaged in section 51 of the Special Act to combat trafficking in persons of 2014.

3. Enforcement of penalties. The Committee takes due note of the detailed information provided on the criminal cases related to the crime of trafficking in persons initiated between 2017 and 2020 which have resulted in judicial decisions. According to the statistics of the Office of the Public Prosecutor, in 2019, 80 cases were initiated for this crime, of which three cases resulted in convictions and nine persons facing charges were convicted; in 2020, 40 cases were initiated, with four cases resulting in convictions and 12 persons facing charges were convicted; and between January and May 2021, 18 cases were initiated, with five cases resulting in convictions and 12 persons were convicted. The Government indicates that the National Council to Combat Trafficking in Persons reports that there are challenges in so far as those responsible for the prosecution of the crime require equipment, as well as strengthened capacities to carry out effective questioning and, more specifically, high technology police equipment and vehicles for investigation. The Committee requests the Government to continue providing updated information on the investigations carried out, the criminal prosecutions initiated and the convictions handed down under the Special Act to combat trafficking in persons. Please also provide information on the measures adopted to strengthen the capacities of those engaged in the investigation and prosecution of persons responsible for trafficking in persons for both labour and sexual exploitation (specialized units to combat trafficking in persons and related crimes of the Office of the Public Prosecutor and the National Civil Police).

Articles 1(1) and 2(1). Student social service. The Committee previously requested the Government to provide its comments in relation to the 2017 observations of the National Confederation of Salvadoran Workers (CNTS), in which it indicated that public and private educational establishments obliged students to carry out unpaid work for one or two years as a requirement to obtain their respective diplomas. In reply, the Government indicates that, in accordance with section 26 of the General Education Act, a Bachelor’s degree is granted to students who have completed and had the corresponding study plan approved, which includes the student social service. It also refers to Decision No. 15-0862 of May 2013, which contains the standards for the performance of student social service by middle and higher education students in the central offices and departments of the Ministry of Education. The Committee observes that, by virtue of introductory paragraph V of the above Decision, the objective of the student social service is to promote, among those with Bachelor’s degrees and professionals engaged in training, the development of values such as solidarity, service to others, mutual respect and team work, through the implementation of projects or activities with a social or educational purpose which contribute to the social development of the country. With a view to the performance of social service, education institutions have to submit a note to the Human Development Department of the Ministry with a request for students in the final years of their Bachelor degree studies or who are about to finalize their university studies to perform hours of social work in the units established by the Ministry of Education. The note must set out the hours during which the student performs vocational practice and the area of preference according to their studies (Part III, paragraph A, of the Decision). The Committee also notes that section 3 of the Regulations of the student social service for the middle level of 1994 provides that any person commencing their studies at the middle level shall automatically be included in the student social service, which may be performed during the three years of the Bachelor studies, and shall consist of the implementation of a project for the benefit of the community. Students are entitled to opt to carry out projects which correspond to their vocational interests, and they are not therefore imposed (section 5 of the Regulations).

The Committee recalls that a compulsory scheme of vocational training, by analogy with and considered as an extension of compulsory general education, does not constitute compulsory work or service within the meaning of the Convention. However, the various elements involved in the general context of a particular scheme of training have to be taken into account to determine whether such a scheme is unequivocally one of vocational training or on the contrary involves the exaction of work or services within the definition of forced labour (2012 General Survey on the fundamental Conventions, paragraph 269, and 2017 General Survey on the eradication of forced labour, paragraph 36).

On the basis of the above-mentioned legislative provisions, the Committee observes that the student social service was designed as a means of contributing to the training of students and the promotion of social values within the framework of the implementation of projects for the benefit of society, which take into account the type of studies undertaken. However, the Committee observes that the legislation does not specify the maximum number of hours that students have to perform in the student social service, nor the type of activities that they have to undertake in practice as part of that service. Lastly, the Committee notes that, according to information from the Ministry of Education, Science and Technology, in 2017, the Student Social Service Commission embarked upon the revision of the regulations of the student social service and prepared a draft text of new regulations. In accordance with section 13 of the draft regulations, the minimum duration of the student social service is 150 hours. The Committee requests the Government to specify the average and maximum number of hours that students have to perform as student social service to obtain their Bachelor’s degree, and indicate the frequency and provide examples of the type of activities assigned to them as part of such service. The Committee also requests the Government to indicate whether new regulations exist for the student social service and to provide a copy with its next report.

C138 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 1 of the Convention. National policy for the eradication of child labour, labour inspection and application in practice. The Committee previously noted the measures adopted by the Government within the context of the road map to make El Salvador free from child labour and its worst forms and requested it to continue its efforts to remove children from child labour, especially those engaged in hazardous types of work. The Committee notes the Government’s indication in its report that, although the period of implementation of the road map has finished (2015–17), efforts have continued for the progressive elimination of child labour at the national level. In this regard, the Ministry of the Interior and Territorial Development, together with the Ministry of Labour and Social Welfare, have carried out awareness-raising campaigns on child labour. The National Council for Children and Young Persons, through local committees for the rights of children and young persons, has undertaken various dissemination, training and technical support activities related to the prevention and eradication of child labour in the different departments of the country. The Committee notes the extensive statistical data provided by the Government, according to which the number of children engaged in child labour fell from 141,609 in 2014 to 93,283 in 2019, and the sectors with the greatest incidence of child labour are: agriculture (41.2 per cent), where hazardous tools are used by children; and commerce, hotels and restaurants (32.2 per cent). It notes that the indicators of child labour below the minimum age and hazardous types of child labour fell between 2014 and 2019 from 2.9 to 2.0 per cent of children between the ages of 5 and 17 years for work below the minimum age and from 1.5 to 1.0 per cent for hazardous types of work, respectively; and that the total number of presumed victims of child labour in 2019, according to the reported crime information system, was 29 (including four children between 0 and 8 years of age, four children between 9 and 11 years of age and ten children between 12 and 14 years of age).

With reference to the labour inspections carried out on child labour, the Government indicates that the Standing Plan for Child Labour Inspections is continuing to be followed by the General Directorate of Labour Inspection at the national level. The Committee notes that the number of scheduled child labour inspections has decreased progressively from 1,155 inspections carried out in 2018, to 951 in 2019 and 557 in 2020. In this regard, the Government indicates that the decrease in the number of inspections in previous years was largely due to the COVID-19 pandemic, which reduced inspection-related activities. The Committee notes that the number of inspections in which children were identified as being engaged in child labour was six in 2018, two in 2019 and two in the period between January and May 2021.

While welcoming the information provided by the Government, according to which the rate of child labour fell between 2014 and 2019, the Committee requests the Government to continue providing information on the measures adopted to prevent child labour and ensure its progressive elimination, particularly for children and young persons engaged in hazardous activities, with an indication of the results achieved. Taking into account the Government’s indication that most child labour is concentrated in the agricultural sector, including hazardous types of work, and that on the other hand the number of labour inspections has decreased, the Committee encourages the Government to renew its efforts to strengthen the capacities of the labour inspection services so that they can monitor child labour in all sectors, including the informal economy. The Committee requests the Government to continue providing information on this subject, with an indication of the number and nature of the violations detected and the penalties imposed.

Article 2(3). Age of completion of compulsory schooling. In its previous comments, the Committee noted the low rate of school attendance by children and young persons in rural areas and requested the Government to continue taking the necessary measures to raise the school attendance rate of children below the minimum age for admission to employment, which is 14 years, particularly in rural areas. The Committee notes that, according to the statistics provided by the Government, in general, the school drop-out rate has fallen from 6.6 per cent in 2014 to 4.2 per cent in 2019. However, it observes that the school attendance rate for children up to the age of 14 years fell from 96.6 per cent in 2014 to 77.9 per cent in 2019. The Committee notes that the Government has continued implementing the accelerated education programme for the first and second cycles of basic education, as a means of enabling vulnerable persons, including children and young workers, to study at flexible times and in accordance with their needs. Between 2017 and May 2021 a total of 9,997 students have been covered by this programme. The Committee requests the Government to continue taking measures to increase school attendance and retention rates for children under 14 years of age (the minimum age declared by El Salvador for admission to employment) and to provide updated information on this subject, if possible disaggregated by department and age.

C182 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 7(2) of the Convention. Effective and time-bound measures. Clause (b). Removing children from the worst forms of child labour and ensuring their rehabilitation and social integration. Child victims of trafficking. In response to the request for information on the measures adopted to remove and rehabilitate child victims of trafficking, the Committee notes the Government’s indication that the Unit of the Office of the Public Prosecutor that is specialized in the crimes of the unlawful smuggling and trafficking of persons coordinates with the respective Departmental Board for the Protection of Children and Young Persons in any criminal investigations involving children and young persons as victims with a view to providing them with the necessary protection. Victims of trafficking also receive specialized psychological assistance and support with a view to their inclusion in training programmes and productive activities. The Committee also notes that the Regulations issued under the Special Act to combat trafficking in persons (Decree No. 61 of 25 October 2016) provides in section 54 for the creation of hostels and specialized care centres for children and young persons who are victims of trafficking. The Committee requests the Government to continue supplying information on the measures adopted to provide the necessary and appropriate direct assistance to free children and young persons who are victims of trafficking, with an indication of the numbers who have been rehabilitated and socially integrated. In this regard, it also requests the Government to indicate the number of hostels and specialized care centres for children and young persons who have been victims of trafficking that have been established and the numbers of persons protected.

Clause (d). Children at special risk. Child domestic workers. The Committee previously noted the situation of boys and girls who work in the domestic sector under difficult and degrading conditions and requested the Government to take measures in this regard. The Committee notes that, according to data of the General Directorate of Statistics and Census provided by the Government, the percentage of children between the ages of 5 and 17 years engaged in child labour who were working in domestic service was 14.1 per cent in 2019, most of whom were girls or young women. It notes the Government’s indication that the number of boys and girls under 14 years of age engaged in household work who have been provided with assistance by Community Family Health Units was 9,676 in 2018, 8,980 in 2019 and 8,213 in 2020. The Committee requests the Government to provide more specific information on the measures adopted to remove and rehabilitate children engaged in domestic work under hazardous conditions.

C182 - Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 3(a) and 7(1) of the Convention. Worst forms of child labour and penalties. Sale and trafficking of children. In its previous comments, the Committee welcomed the adoption of the Special Act to combat trafficking in persons, which criminalizes and penalizes the crime of trafficking in boys, girls and young persons for sexual or labour exploitation and establishes measures for prevention and the protection of victims. In response to the request for information on the effect given in practice to the Act, the Committee notes the indication by the Government in its report that: in 2019 a case of trafficking in persons for labour exploitation was prosecuted involving five victims under 18 years of age of Guatemalan nationality, and that four of those charged were convicted. The National Civil Police recorded eight cases of the trafficking of minors in 2018 (three for labour exploitation and five for sexual exploitation) and 19 cases in 2019 (three for labour exploitation and 16 for sexual exploitation); 15 cases were referred to the National Council for Children and Young Persons (in charge of providing assistance to child victims of trafficking) involving boys, girls and young persons who were presumed victims of trafficking; and the Ministry of Education, Science and Technology identified 73 students affected by the crime of trafficking. The Committee also notes the detailed information on action to prevent trafficking in children and young persons, including: (i) training days on trafficking for police responsible for prevention and immigration officials; (ii) awareness-raising talks for students in public and private educational institutions; and (iii) coverage of the crime of trafficking in persons in the education curriculum at all levels, with a view to promoting a culture of denouncing the crime. Health workers have also been trained in the early detection of victims of trafficking, as a result of which 28 presumed cases of trafficking were detected in 2019 involving children and young persons between the ages of 10 and 17 years, which were referred to the Office of the Public Prosecutor for the respective investigations. The Committee notes that, in its concluding observations in 2018, the United Nations Committee on the Rights of the Child expressed concern at the occurrence of child trafficking in schools (CRC/C/SLV/CO/5-6, paragraph 42). Noting the measures adopted by the Government, the Committee encourages it to continue taking measures to prevent, investigate and punish trafficking of children and young persons for labour and sexual exploitation. It also requests the Government to continue providing updated statistical information on the number of investigations, prosecutions and convictions in cases of trafficking of children and young persons under the Special Act to combat trafficking in persons.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee noted the various measures adopted by the Government to facilitate the access to education of boys and girls in a situation of poverty and requested the Government to provide information on their results. In this regard, the Committee notes the Government’s indication that programmes for the provision of school uniforms and materials to children in public educational institutions are continuing and that measures have been taken to improve the infrastructure in educational establishments with a view to creating safe and pedagogically appropriate spaces to bring together students and communities. A total of 727 school infrastructure and furniture projects were carried out in 2018, 1,334 in 2019, 667 in 2020 and 93 between January and April 2021. Moreover, between 2018 and 2020, a total of 1,048,953 children and young persons in initial or middle education benefited from the provision of school meals. The Committee also notes the adoption of various measures to eradicate poverty, including transport vouchers for young persons in the third cycle of the general or technical baccalaureate in any of the forms provided by the Ministry of Education, as well as additional vouchers for young mothers who are still in the education system.

The Committee also notes, according to the 2017 report of the Ministry of Education Observatory of Subsidized Public and Private Educational Establishments in El Salvador, that 44.61 per cent of educational establishments in 2017 were in communities where gangs are present; 38.11 per cent were located in areas where theft and/or burglaries are reported; 34.62 per cent are in areas where drugs are circulating; 27.62 per cent in areas where the carrying of knives and firearms have been identified; and 18.76 per cent in areas where extortion is practiced. It also notes that in its 2018 concluding observations, the Committee on the Rights of the Child emphasizes the overwhelming impact of violence on children’s access to education, with the majority of schools situated in communities where there is a high crime rate and a high number of killings of teachers and students (CRC/C/SLV/CO/5-6, paragraph 42). The United Nations Special Rapporteur on the human rights of internally displaced persons, in her 2018 report on her visit to El Salvador, also indicates that schools in some localities are no longer considered safe spaces for children, teachers are threatened, gangs operate within and around some school facilities where they recruit children, expose them to gang-related criminal activities, and identify girls as sexual targets for gang members (A/HRC/38/39/Add.1, paragraph 22).

While recognizing that the Government has adopted certain measures to facilitate the access of children and young persons to free basic education, the Committee notes with concern the existence of a climate of violence in certain areas of the country, which could have a negative impact on the access of children and young persons to education. Recognizing the difficult security situation in the country, and considering that education is key in preventing the engagement of children in the worst forms of child labour, the Committee urges the Government to renew its efforts to improve the education system and to continue facilitating access to free basic education for children living in all the regions of the country. The Committee also requests the Government to provide information on the progress achieved in this respect, and on the results of the various educational support programmes for poor children.

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

Adopted by the CEACR in 2021

C144 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the National Business Association (ANEP), endorsed by the International Organisation of Employers (IOE), received on 13 October 2020 and 25 October 2021, providing information on issues addressed in this comment. The Committee observes with deep concern that the observations of the ANEP from October 2020 state, as an element contrary to compliance with the Convention, that since the current President of the ANEP took office in April 2020, the Government has refused to deliver his credentials, and the highest government authorities, including the President of the Republic and the Minister of Labour and Social Welfare – who chairs the Higher Labour Council (Consejo Superior de Trabajo) (CST) – refuse to recognize the unanimous election of Mr Javier Ernesto Simán Dada as President of the ANEP and representative of the employers, as well as denigrating him and launching slanderous attacks against him personally, against his family and his enterprises, and also against the ANEP.

The Committee also takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021, and of the Single Confederation of Salvadoran Workers (CUTS), endorsed by the National Trade Union Federation of Salvadoran Workers (FENASTRAS) and the Single Federation of Rural Workers of El Salvador (FUOCA) received on 14 October 2021, both of which concern issues addressed in this comment.

Follow-up to the conclusions of the Committee on the Application of Standards (109th Session of the International Labour Conference, June 2021)

The Committee notes the discussion in the Conference Committee on the Application of Standards, in June 2021, on the application of the Convention. The Committee observes that the Conference Committee urged the Government to: (i) refrain from interfering in the constitution and activities of independent workers’ and employers’ organizations, in particular the National Business Association (ANEP); and (ii) reactivate, without delay, the Higher Labour Council (CST) and other tripartite entities, respecting the autonomy of the social partners and through social dialogue in order to guarantee their full functioning without any interference. The Conference Committee decided to include the case in a special paragraph of its report and requested the Government to continue to avail itself of ILO technical assistance, to submit a detailed report on the application of the Convention in law and in practice to this Committee, in consultation with the social partners, and to accept a high-level tripartite mission to be carried out before the 110th International Labour Conference. The Committee notes that, through a communication received on 3 December 2021, the Government has informed the Office that it agrees to receive the high-level tripartite mission.

Articles 2 and 3(1) of the Convention. Adequate procedures. Reactivation of the Higher Labour Council. In its previous comments, the Committee requested the Government to continue providing detailed and updated information on the measures adopted to ensure the effective operation of the CST, and on the content and outcome of the tripartite consultations held within the framework of that tripartite body. The Committee observes that the Government:

(i) indicates that during the COVID-19 pandemic crisis, it engaged in dialogue with the employers and workers, including holding meetings between the leadership of the ANEP and the President of the Republic, and emphasizes that the drafting of 39 health and safety protocols for different types of enterprises or workplaces, developed following a broad discussion and consultation process with the participation of trade unions from each sector, bears witness to this social dialogue with the enterprise sector. The Government also underlines that for the first time in the country’s history, employers’ associations collaborated in establishing the “Institutional Strategic Plan 2020-2024” of the Ministry of Labour and Social Welfare, which includes social dialogue among its main objectives; and refers to the approval of the Act on protecting Salvadoran employment and the Act on teleworking;
(ii) adds that the Minister of Labour sought to maintain tripartite communication to ensure due compliance with the labour standard, to maintain respect for workers’ labour rights, and to support the enterprise sector to counter the negative effect the COVID-19 pandemic on enterprise, highlighting meetings regarding the health sector in particular. The Government also reports that, on 29 April 2021, the Ministry of Labour and Social Welfare inaugurated the first Trade Union Training Institute (IFS), to strengthen social dialogue and benefit more than 150,000 workers grouped in various unions; and
(iii) reiterates that the CST was activated on 16 September 2019 – and indicates that in November 2019, the National Minimum Wage Council was also established, with the social partners freely electing their representatives. With regard to the activity of the CST, the Government recalls that the CST, at its meeting held in November 2019, approved ILO participation in the elaboration of a National Strategy for the Generation of Decent Employment. The Government specifies, however, that both the Higher Labour Council and the National Minimum Wage Council have been unable to meet in the normal manner due to the health crisis, and the measures adopted to suspend activities in order to contain it. To address the situation, the Ministry of Labour held meetings with representatives of the workers’ organizations, establishing an Intersectoral Trade Union Roundtable on 22 April 2020, with a view to providing a space for legitimate, permanent dialogue that would be recognized by workers in the health sector.

With regard to the observations by the social partners, the Committee notes that the ANEP: (i) while recognizing that the CST was reactivated in 2019, specifies that it was not possible to induct all the employer representatives without an amendment to the rules to that end, since the rules listed explicitly the employers’ organizations entitled to appoint representatives, and three of the eight organizations listed were inactive; (ii) reports that, after its inaugural meeting, the CST only met on three occasions, the last of which was in March 2020 (to address issues related to childcare facilities), and that no meetings were held during the four months prior to the pandemic emergency; (iii) reports that no meeting of the Officers or of a plenary meeting of the CST has been called since then; (iv) claims that the Government only reactivated the CST for a few months as a publicized tactical move to give the impression of compliance with the conclusions of this Committee and of the Conference Committee; and adds that the CST has not been convened due to the fact that the President of the Republic does not recognize the President of the ANEP, and to the President of the Republic’s order, made clear on television and backed up by the Minister of Labour, to prohibit public servants from meeting with the ANEP; (v) emphasizes that the Government’s justification for not holding CST meetings as a consequence of the pandemic is not credible (the Government’s agenda includes many meetings held during the period that it decided not to convene the CST); since July 2020 the activity in the country has gradually returned to near normality with the corresponding preventive measures in place; the size of the CST is such that a plenary sitting could be accommodated in a large, well-ventilated space – not to mention its three Officers alone; and in any case, the CST would have been able to meet in a virtual session through online platforms; and (vi) rejects the claims that consultations were held with the participation of employers’ representatives and affirms that in practice the Government had chosen its interlocutors at its own discretion and that when other employers’ representatives are invited, the aim is purely for publicity and there is no true tripartite or bipartite dialogue.

The Committee also notes the observations of the ITUC, emphasizing that by freezing the CST, the Government is failing to comply with the obligation to consult provided under the Convention; and denouncing the Government for its unilateral appointment of workers’ representatives for the tripartite consultations.

The Committee also takes note of the observation of the CUTS, indicating that: (i) since its last session on 2 March 2020, neither the plenary nor the Officers of the CST have been convened; (ii) the term of office of the CST expired on 16 September 2021, and there is no indication of what the mechanism for electing representatives might be, given that no clear rules have been established, in consultation with the social partners, for designating the worker representatives on the CST, as the Committee has been requesting; (iii) tripartite consultation is thus absent in the country; and (iv) trade union organizations that are not among the group of unions close to the Government are not invited to meetings convened by the Ministry of Labour and Social Welfare, such as the consultations for the Ministry’s Institutional Strategic Plan 2020-2024 or the general health safety protocol for the pandemic.

The Committee notes that the Government claims to have been able to hold a wide variety of meetings and gatherings for social dialogue during the pandemic, including in virtual format, and to take concrete measures. It nevertheless notes with concern the allegations made by the social partners that the Government, in a contrary and deliberate manner, has not taken a single measure to enable the CST to continue meeting, regardless of the repeated requests from the ILO’s supervisory machinery – most recently from the Committee on the Application of Standards in June 2021. The social partners allege that this has enabled the Government to dialogue only with like-minded interlocutors, thus failing to comply with the requirements for tripartite consultation under the Convention. In this regard, the Committee regrets to observe that despite having requested up-to-date, detailed information on the measures adopted to ensure the effective operation of the CST, the Government simply attributes its inactivity to the pandemic without providing a fuller explanation, when the CST was supposed to play a key role in tripartite consultations on measures to address the pandemic, and the Government itself claims that despite the challenges posed by the pandemic it successfully managed the operation of many other dialogue mechanisms, even creating new, differently constituted fora, instead of promoting tripartite consultation within the CST.

The Committee further notes that, in its communication received on 3 December 2021, the Government indicates that a new CST is in the process of being set up for the period 2021–23. The Government affirms in this respect that the preliminary steps required by the regulations have been taken in order for the worker and employer sectors to designate their representatives and that, these designations having been completed, the first session of the new CST is scheduled to take place on 8 December 2021.

The Committee urges the Government to take all the necessary measures to ensure the effective operation of the CST, respecting the autonomy of the social partners, including with regard to the appointment of their representatives – urging it in particular to ensure full recognition of the President of the ANEP and of this most representative employers’ organization in social dialogue and tripartite consultation, as well as during any revision of the Statute of the CST. The Committee refers to its previous recommendations in this regard, and requests the Government to provide information on any developments, as well as on the content and outcome of the tripartite consultations held within this tripartite body. The Committee also urges the Government to take the necessary measures to ensure the full autonomy of the ANEP, the recognition of the results of its April 2020 elections and, in particular, of its President, Mr Simán Dada, and of this employers’ organization as a social partner, to allow the full participation of the ANEP in social dialogue through its chosen representatives.

Interference in the election of representatives for tripartite consultation and in delivery of credentials. With regard to the allegations formulated by the ANEP in respect of government interference in the election of representatives at the Superintendency for the Electricity and Telecommunications Sectors (SIGET), the Committee requested the Government to provide a copy of the ruling of the Supreme Court of Justice (CSJ) definitively setting aside the election of the 2017 employer representatives on the SIGET that is challenged by the ANEP, and further requested the Government to provide information on the forms of elections of the representatives of employers and the date on which the elections were held.

The Committee notes that the Government, while reiterating its respect for the free election of representatives of tripartite and joint bodies: (i) recalls that in its judgment of 17 January 2018, the CSJ ordered precautionary measures with immediate provisional effect that suspended the appointments challenged by the ANEP; (ii) specifies that although a definitive ruling was requested, the CSJ stated that the ruling was still pending, with the result that the private sector representatives remained the same persons appointed by the ANEP, and (iii) indicates that, given that procedures for the election of private sector representatives on the SIGET board of directors have not been initiated since the issuance of precautionary measures in January 2018, and because of the pending CSJ decision, for the moment, no election mechanism has been implemented.

The Committee notes that the ANEP, in its observations: (i) states that it is awaiting the results of its appeal regarding the election of the employers’ representatives on the SIGET, recalling that in this case the Government had constituted 60 supposed employers’ organizations that had participated and won the election illegally; (ii) indicates that the ANEP proposed a reform to the Labour Code which would allow employers’ organizations to follow clear, objective, predictable and binding rules for appointing the social partners; (iii) alleges however that the current Government is continuing the same delaying tactics, withholding delivery of credentials to employers organizations with the intent of hindering their participation in the appointment of the directors of various autonomous tripartite or joint public entities; (iv) states in this regard that in September 2020 the Government refused the ANEP’s participation in the election of the Board of Governors and Executive Board of the Development Bank of El Salvador – BANDESAL (the refusal was on the grounds of the absence of the ANEP’s credentials, which were withheld by the Government itself); and refers to other examples where the appointment of employer representatives was obstructed, in the Salvadoran Social Security Institute, the Maritime Port Authority, and the Independent Executive Committee for Ports; and (v) denounces the submission to the Legislative Assembly by the President of the Republic on 29 May 2021 of reforms, which were then approved by Legislative Assembly, to the manner in which directors are appointed by employers’ organizations in 23 autonomous public entities. These reforms grant the President power to appoint the directors who represent the employers’ organizations, as well as to arbitrarily remove them from their posts.

The Committee also takes note of the observations of the ITUC, denouncing the Government for imposing a legal obligation on trade unions to request renewal of their legal status every 12 months, thereby deciding unilaterally to withdraw the unions’ credentials, preventing them from carrying out their trade union activities, and denying them the conditions for carrying out tripartite consultations.

The Committee also notes that the CUTS alleges that: (i) the Government has been excluding organizations that are not close to it from participating in the elections of tripartite bodies; (ii) as well as the problems regarding worker representation on the CST, the majority of federations and confederations were not convened for the election of representatives in the Salvadoran Vocational Training Institute (INSAFORP), an election that was held without respect for the applicable rules and which resulted in the appointment of persons close to the Government; and (iii) the fact that the Ministry of Labour and Social Welfare delayed delivery of credentials for up to nine months, while other organizations were issued credentials promptly to allow them to participate in the INSAFORP elections, is germane to this issue.

In light of the above and observing with deep concern that multiple allegations of interference by the authorities in the appointment of employers’ and workers’ representatives in public tripartite and joint bodies have been made for a long time, and that recent developments indicate a worsening of the situation, the Committee urges the Government, in consultation with the social partners, to take the necessary measures to ensure respect for the autonomy of the employers’ and workers’ organizations in this regard, both in law and in practice, including measures to ensure the prompt delivery of credentials for all organizations, as well as the repeal of any legal provisions in respect of the abovementioned 23 autonomous entities that allow the Government the possibility of interfering in the appointment of employers’ representatives.

Article 5(1). Effective tripartite consultations. In its previous observation, the Committee reiterated its request to the Government to provide updated information on the outcome of the tripartite consultations held concerning the Protocol on the submission procedure that the Government indicated was drawn up with ILO assistance, and to provide a copy of the Protocol when it has been adopted. It also reiterated its request to the Government to send detailed and updated information on the content and outcome of the tripartite consultations held on all the matters relating to international labour standards covered by Article 5(1)(a)–(e) of the Convention. In this regard, the Committee notes that the Government: (i) indicates that an analysis has been conducted, and there is no previous example of a submission process in the country, as no official procedure for undertaking one existed; (ii) asserts that first steps have been taken in defining the procedure for the submission of Conventions, and an inter-institutional round table between the Ministry of Labour and the Ministry of Foreign Relations has been established for that purpose; and (iii) requests ILO assistance to take account of best practices at international level to establish and strengthen the submission process. The Committee further notes in this regard that the ANEP and the CUTS both assert that the tripartite consultations that the Committee requested the Government to undertake in respect of the Protocol on the submission procedure did not take place, and that they concur with the ITUC in denouncing the absence of tripartite consultations in matters related to international labour standards.

The Committee notes with concern that the Government, in reply to the Committee’s previous observation, has not provided the information requested on the content and outcome of the tripartite consultations held on all matters related to international labour standards covered by the Convention, nor on the Protocol on the submission procedure, which the Committee was told had been elaborated; and principally affirms that there is no precedent in the country, nor any procedure in place for submitting international labour standards to the competent authorities exists.

While referring to the Memorandum concerning the obligation to submit Conventions and Recommendations to the competent authorities, adopted by the Governing Body of the ILO, the Committee strongly hopes that, in conformity with the Constitution of the International Labour Organization, the submission of international labour standards to the Legislative Assembly can resume as soon as possible, and urges the Government, in consultation with the social partners, to take the necessary measures, in particular with regard to the CST, to comply with the obligation of tripartite consultation provided in the Convention. Once again, the Committee requests the Government to provide detailed and updated information on the content and outcome of tripartite consultations held on all issues related to international labour standards covered by Article 5(1)(a)–(e) of the Convention, including the submission of international labour standards and the preparation of its next report in consultation with the social partners.

Technical assistance. In its previous comments, the Committee requested the Government to continue providing detailed and updated information on the measures adopted or envisaged to promote tripartism and social dialogue in the country within the context of ILO technical assistance, and on their outcome. The Committee duly notes that the Government is grateful for the support and follow-up provided through ILO assistance and cites various areas of cooperation in this regard, including social protection, occupational safety and health or the labour market information system. With regard to social dialogue, the Government reiterates that it had support from the ILO to reactivate the CST in 2019 and that the ILO also provided accompaniment in regional coordination spaces.

In the hope that it will shortly see progress in tripartite consultation, and compliance with the Convention in the country, the Committee recalls that ILO technical assistance remains at the disposal of the tripartite constituents, while emphasizing the importance that such assistance be defined through social dialogue, for example within the framework of the CST.

[The Government is asked to reply in full to the present comments in 2022.]

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the National Business Association (ANEP), supported by the International Organisation of Employers (IOE), received on 13 October 2020 (which also refer to the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and which the Committee is addressing here with regard to the present Convention), which report that the President of the Republic and other higher Governmental bodies have failed to recognize, slandered and intimidated the new President of ANEP, who was elected on 29 April 2020, preventing dialogue between public servants and ANEP or its President, thereby publicly denigrating the most representative employers’ organization and fuelling rejection of its President by the public, in violation of the Convention and the most fundamental civil liberties. The Committee expresses its concern at these serious allegations and requests the Government to provide its comments on the matter.

The Committee also notes that the Committee on Freedom of Association referred the legislative aspects of Case No. 3321 to this Committee, trusting that the Government would take the measures necessary to ensure full respect of the right to organize of prison staff (see 392nd Report, October 2020). Recalling its request that the necessary measures be taken in order to recognize the right to organize of State employees, with the sole possible exception of the armed forces and the police (see the legislative reforms pending below), the Committee requests the Government to keep it informed of any developments in this respect.

As regards the other pending issues, the Committee reiterates the content of its comments adopted in 2019, reproduced as follows.

The Committee notes the Government’s replies to the previous observations of ANEP and the IOE, as well as of the National Confederation of Salvadoran Workers (CNTS).

Trade union rights and civil liberties. Murder of a trade unionist. With regard to the murder of Mr Victoriano Abel Vega in 2010, the Committee notes that the Government emphasizes the need to accelerate the investigation and punish the perpetrators, and it details the steps it is taking periodically to request updated reports from the Attorney-General of the Republic, with the most solid line of investigation being that the murder was committed mistakenly by a group of gang members. The Committee notes that the details provided by the Government on the investigation process have already been examined by the Committee on Freedom of Association and that recent updates show that the case is still under investigation. The Committee therefore refers once again to the recommendations of the Committee on Freedom of Association in Case No. 2923 (see 388th Report, March 2019).

Article 3. Freedom and autonomy of workers’ and employers’ organizations to appoint their representatives. Reactivation of the Higher Labour Council. The Committee notes with interest that, according to the Government, the Higher Labour Council, after having been inactive since 2013, was set up as of 16 September 2019. In this connection, the Committee refers to its comments on the application of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Articles 2 and 3. Legislative reforms pending. For several years, the Committee has been requesting the Government to take the necessary measures to amend the following legislative and constitutional provisions:

-articles 219 and 236 of the Constitution of the Republic and section 73 of the Civil Service Act (LSC), which exclude certain categories of public servants from the right to organize (members of the judiciary, public servants who exercise decision-making authority or are in managerial positions, employees with duties of a highly confidential nature, private secretaries of high-ranking officials, diplomatic representatives, assistants of the Public Prosecutor, or auxiliary agents, assistant prosecutors, labour prosecutors and delegates);
-section 204 of the Labour Code, which prohibits membership of more than one trade union, so that workers who have more than one job in different occupations or sectors are able to join trade unions;
-sections 211 and 212 of the Labour Code (and the corresponding provision of the LSC on unions of public service employees), which establish, respectively, the requirement of a minimum of 35 members to establish a workers’ union and a minimum of seven employers to establish an employers’ organization, so that these requirements do not hinder the establishment of workers’ and employers’ organizations in full freedom;
-section 219 of the Labour Code, which provides that, in the process of registering the union, the employer shall certify that the founding members are employees, so as to ensure that the list of the applicant union’s members is not communicated to the employer;
-section 248 of the Labour Code, by eliminating the waiting period of six months required for a new attempt to establish a trade union when its registration has been denied;
-article 47(4) of the Constitution of the Republic, section 225 of the Labour Code and section 90 of the LSC, which establish the requirement to have attained the age of majority and to be a national of El Salvador by birth in order to hold office on the executive committee of a union, which are excessive restrictions of the right of the workers freely to elect their representatives;
-article 221 of the Constitution of the Republic so as to limit the prohibition of the right to strike in the public service to officials exercising authority in the name of the State and those who perform their duties in essential services in the strict sense of the term (while recalling that it is also possible to restrict the exercise of the right to strike through the establishment of minimum services in public services of fundamental importance);
-section 529 of the Labour Code so that when a decision is taken to call a strike, only the votes cast are taken into account, and also that the principle is recognized 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, even where the strike has been decided upon by an absolute majority of the workers; and
-section 553(f) of the Labour Code, which provides 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,” which is inconsistent with section 529(3) of the Labour Code and which restricts excessively the right of workers’ organizations to organize their activities in full freedom and to formulate their programmes.

In this respect, the Committee notes that the Government duly notes the above-mentioned recommendations, indicates that consideration could not be given to proposals for reform owing to the inactivity of the Higher Labour Council over six years, and states that, with the reactivation of the latter, these, and other proposals for labour legislation reform, will be submitted to it. The Committee duly notes that, as specified by the Government, ILO technical assistance has been requested in this regard. Hoping to be able to note progress in the near future on these long pending legislative reform matters, the Committee urges the Government, following tripartite consultation, to take the necessary measures to ensure conformity of the above provisions with the Convention.