Observación (CEACR) - Adopción: 2022, Publicación: 111ª reunión CIT (2023)

Convenio sobre la consulta tripartita (normas internacionales del trabajo), 1976 (núm. 144) - El Salvador (Ratificación : 1995)

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021. The Committee also notes the observations of the International Organization of Employers (IOE), received on 10 November 2022, which contain allegations of serious and repeated violations by the Government of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), as well as of the present Convention. Both observations provide information on matters dealt with in this comment, which is examined below.The Government is requested to provide its comments in this respect.

Follow up to the conclusions of the Committee on the Application of Standards (110th Session of the International Labour Conference, May–June 2022)

The Committee notes the discussion on the application of the Convention held in the Conference Committee on the Application of Standards in June 2022. In its conclusions, the Conference Committee took note of the high-level tripartite mission, accepted by the Government, that took place in May 2022. However, the Committee regretted that five ILO Conventions were ratified without consulting the most representative employers’ organizations. The Committee also noted with deep concern the multiple allegations of interference by the authorities in the appointment of employers’ and workers’ representatives in public tripartite and joint bodies.

Taking into account the discussion of the case, the Committee urged the Government to: (i) refrain from any aggression and from interfering in the establishment and the activities of employers’ and workers’ organizations, in particular the National Business Association (ANEP); (ii) ensure the effective operation of the Higher Labour Council (CST) and other tripartite entities, respecting the full autonomy of the most representative employers’ and workers’ organizations and through social dialogue, in order to guarantee their full functioning without any interference; (iii) refrain from unilaterally appointing workers’ and employers’ representatives for tripartite consultations and institutions, and to develop, in full consultation with the social partners, the appointment procedures of those representatives; (iv) repeal the legal obligation on trade unions to request renewal of their legal status every 12 months and the 23 decrees adopted on 3 June 2021; and (v) develop a time-bound road map to implement without delay all the recommendations made by the ILO high-level tripartite mission.

The Conference Committee requested the Government to present a detailed report on the application of the Convention in law and practice to the Committee of Experts before 1 September 2022, in consultation with the social partners. The Committee also encouraged the Government to continue to avail itself of technical assistance from the Office to ensure full compliance with its obligations under the Convention.

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 to provide detailed and updated information on measures adopted to ensure the effective operation of the Higher Labour Council (CST), as well as on the content and outcome of the tripartite consultations held within this tripartite body.

Reactivation and operation of the CST. The Committee notes that the Government reports that the CST is operating effectively. In this regard, the Government reiterates that the CST 2021-2023 was set up in December 2021, and that the workers’ and employers’ representatives were freely and independently elected, in conformity with section 4 of the CST Statute. The Government states that Mr José Agustín Martínez, Vice-President of the ANEP, was elected as CST Vice-President for the employers’ sector, after being elected by the employer organizations; and Mr Jaime Ernesto Ávalos was elected as CST Vice-President for the workers’ sector; while the Minister of Labour and Social Welfare, Mr Oscar Rolando Castro, was elected President of the CST. The Government adds that since its instauration, the CST has held five plenary meetings, and ten meetings of its board of officers, in accordance with section 11 of its Statute, which provides that the CST shall meet at least twice yearly. The Government indicates that one of the CST objectives was the tripartite construction of a strategy to generate decent work, for which the CST requested ILO technical assistance. In this connection, the Government indicates that it has held several meetings with representatives of the ILO Regional Office with a view to agreeing on a road map for the elaboration of such a strategy. The Government also reports that, on the basis of its Statute, the CST agreed to establish a Tripartite Technical Commission, the mandate of which would include following up and ensuring the functioning of the CST agenda. The Government indicates that the three groups have formed their delegations on the Tripartite Technical Commission, which is functioning regularly, and has followed up on the abovementioned strategy, with the assistance of the employment specialist of the ILO Regional Office and has also carried out a review of the Act for the protection of children and adolescents.

The Committee takes note, however, of the ITUC’s observations relating to the ILO tripartite mission which took place in the first week of May 2022. The ITUC indicates that the tripartite mission observed that the CST was back in operation, and that several meetings had been held, at which the ratification of several ILO Conventions was discussed. Nevertheless, the ITUC highlights the following persistent problems regarding the application of the Convention: (i) steps must be taken, by filling the empty seats on the body as soon as possible, to ensure representation of employers and workers on an equal footing within the CST; (ii) the administrative process for the designation of workers’ representatives continues to be complex, and hampers the operation of the CST; and (iii) trade unions are obliged to renew the composition of their boards each year, making a legal obstacle and complicating the process of appointing workers still further.

The Committee also notes the IOE’s observations to the effect that the CST has only been active for ten and a half months since 1 June 2019, that is, for only 25 per cent of the current presidential term, and only during brief periods of time: from September 2019 to March 2020, for a duration of 5.6 months, and between December 2021 and May 2022, for a period of 4.9 months. Moreover, at the end of the High-Level Tripartite Mission on 5 May 2022, the CST became inactive again. According to the IOE’s observations, neither the officers, the plenary, nor the different CST commissions have met. On 5 September 2022, the Government convened a meeting of the officers of the CST, at which the Employer Vice-President and his alternate were present, but neither the President nor his alternate attended the meeting. Consequently, the meeting could not be held, for lack of a quorum. The IOE also indicates that although a plenary session had been agreed with Ministry of Labour officials for 4 October 2022, it was never convened. In this way, the IOE stresses, CST inactivity is disrupting the process of reforming the labour legislation. In this connection, the IOE refers to the approval process of the Act for the Overall Protection of Early Childhood, Childhood and Adolescence, and the adoption by the Legislative Assembly of various reforms to the Labour Code on 4 October 2022, where neither the CST nor the social partners were consulted.

The IOE indicates that the Government has, to date, submitted no document or correspondence to the ANEP on the reports it was due to send before 1 September 2022. The IOE claims that the presentation of the five ILO Conventions before the National Assembly on 1 May 2022, and their adoption two weeks afterwards, without conducting prior consultations with the ANEP as the most representative employers’ organization in the country, showed clear disregard for social dialogue and tripartite consultation, and thus constituted a violation of the Convention by the Government. The IOE adds that, six months after ratification of the five Conventions, neither the ANEP, nor its constituent organizations, have received information on how they are to be implemented. At the request of the ANEP, in July 2022, the ILO Regional Office gave a tripartite course on the content of the five ratified Conventions. The IOE highlights that although government representatives were present, the higher government authorities were not, and neither was it possible to conduct social dialogue regarding the proper implementation of the Conventions.

With regard to the road map requested by the Committee on the Application of Standards in June 2022, the IOE indicates that the CST has neither sat, nor been consulted in respect of elaborating, in a tripartite manner, a road map to implement, without delay, the recommendations formulated by the ILO High-level tripartite mission. In this regard, the IOE stresses that the free and independent Salvadoran employers grouped within the ANEP, the most representative employers’ organization, were still fully disposed and willing to strengthen social dialogue and tripartite consultation.

The Committee observes that the Government does not indicate whether the CST sat during the months after the June International Labour Conference, nor whether it has adopted measures to resolve the difficulties in issuing credentials. The Committee also notes that the Government provides no information on the 23 decrees in question, or the road map requested by the Conference Committee.

Allegations of Government interference. The Committee notes that, in response to the allegations of Government interference in the elections of the representatives for tripartite consultation, the Government reiterates that it recognizes the ANEP as one of the most representative employers’ organizations in the country and points to the nomination of the President of the ANEP as Vice-President for the employer sector of the CST. The Government states that it has committed no acts of harassment and interference against the ANEP and adds that, within the framework of the CST, it has been working with the employers and workers in a harmonious, professional and technical manner. The Government also refers to the ANEP’s participation in the five spaces for social dialogue in the country: the CST; the Social Housing Fund (FSV); the Salvadoran Vocational Training Institute (INFASORP); the Salvadoran Social Security Institute (ISSS) and the National Minimum Wage Board (CNSM). It indicates that the process to appoint the employer representatives on the Board of the ISSS is underway. The Government also refers to 20 autonomous, tripartite and joint bodies, in which the Government, trade unions and other actors participate. It also points to 23 autonomous, tripartite and joint institutions (including the CST and the CNSM) in which the ANEP is represented, with the exception of the ISSS.

The Committee notes however, that the IOE, in its observations, maintains that Government interference is ongoing, and highlights the following examples: in May 2022, the Government convened the election of the employer representatives of the INFASORP, which was suspended on 3 June, without a reason being given, during the discussion of the case of El Salvador at the International Labour Conference. On 23 June 2022, the Government reconvened the election, but altered the rules in a discretionary manner, to include individual enterprises among the electors, a move intended to distort the role of employers’ organizations, and to disrupt their unity. The IOE maintains that the Government also contacted various enterprises with a view to coercing them into presenting a series of Government-preferred candidates. At the same time, the Government warned that any candidate put forward by professional associations belonging to the ANEP would be rejected. The IOE states that the INSAFORP case provides a clear indication of Government interference in the election process for employer representatives, which undermines social dialogue and tripartite consultation by marginalizing the representatives, and because of the potential lack of legitimacy of the supposed representatives. The IOE indicates that: (i) Despite several employer’s organizations belonging to the ANEP registering as electors and putting forward candidates, to date the final ballot has not been counted and there has been no election; (ii) for a number of tripartite and bipartite bodies, the Government has not conducted elections for persons to replace directors appointed by the employers’ organizations whose mandate has expired. The IOE indicates that this is the case with the employer directors in the ISSS, whose mandates came to an end in December 2020. The IOE indicates that to date, elections have not been held to replace employer directors whose mandates have expired in the following institutions: the Maritime Port Authority (AMP); the International Centre for Fairs and Conventions (CIFCO); the Independent Executive Committee for Ports (CEPA); the Salvadoran Tourism Corporation (CORSATUR); the Salvadoran Environmental Fund (FONAES); and the National Fund for Public Housing (FONAVIPO). The IOE also indicates that, between April and July 2022, the Government held elections for the employer representatives on the CNSM, for which ANEP affiliated organizations submitted candidates. However, four months after the elections, the persons elected have still not been sworn in. The IOE states that the most serious interference has been in the reforms to the 23 laws, which have prevented employers from being able to elect their representatives to the boards of the 23 tripartite and joint bodies governed by the laws. That faculty has been transferred to the President of the Republic, who not only choses the employer representatives on the 23 public bodies, but is also empowered to dismiss them, in a discretionary and arbitrary manner. The IOE states that these reforms are still in force, despite the Committee of Experts’ conclusions of February 2022, and the conclusions of the Committee on the Application of Standards of June 2022, which both state that these reforms should be repealed as they are contrary to obligations under international ILO Conventions.

The IOE also indicates that, after the President of the Republic’ statement of 15 September 2022 announcing his intention to present his candidature for the Presidency in the upcoming elections, the ANEP issued a statement on 19 September, declaring that immediately consecutive presidential re-election is expressly prohibited in the Constitution of the Republic. The IOE claims that the Government representatives subsequently made use of social networks to attack and disqualify the ANEP. Furthermore, the same representatives approached the presidents of ANEP affiliated employers’ organizations, and applied pressure on them to give public support to the presidential re-election, and to resign their ANEP membership. Finally, the IOE alleges that the Government has cancelled jointly scheduled and organized meetings and events.

The Committee expresses its deep concernregarding the new allegations of acts of interference, harassment and marginalization against the ANEP as from September 2022. In consequence, the Committee urges the Government to take the necessary measures to ensure the effective and immediate operation of the CST, respecting the independence of the social partners, including with regard to the appointment of their representatives. The Committee refers to its previous recommendations and requests the Government to report on any developments in this respect, as well as on the content and outcome of tripartite consultations held within the framework of this tripartite body. The Committee also urges the Government to take necessary measures to ensure without delay the repeal of the 23 decrees which transfer the function of electing employers’ representatives from the employers to the President of the Republic, thus depriving the employers’ organizations of the exercise of their right to freely elect their representatives, in conformity with the instruments ratified by the country. The Committee also urges the Government to take the necessary measures to put a stop to the delays in issuing the credentials of workers’ organizations, and to make every effort to ensure the formulation and adoption of the road map requested by the International Labour Conference, without delay.

Article 2. Ensure effective tripartite consultations. Issuance of credentials. The Committee notes that the Government recognizes that the legislation in force requires updating with a view to ensuring issuance of credentials to workers’ organizations. In this regard, the Government reports that a study process has begun to propose amendments to the Labour Code in order to fluidify and accelerate the issuance of credentials. The Government adds that, having committed to providing immediate responses, the MTPS has set up a Trade Union Service Office in the Directorate General for Labour, to provide legal assistance to union representatives.

In its observations, the ITUC identifies the requirement under the Labour Code that workers’ organizations renew their executive boards every 12 months as a major obstacle to its participation in the CST and other tripartite organizations in the country. The ITUC indicates that the law requiring this renewal is unfounded and considers that it constitutes a form of interference in the functioning of the organizations in question. The ITUC recalls that Article 3 of the Convention establishes that representatives shall be freely chosen, and that the legal requirement of annual renewal is thus a violation of that freedom. Finally, it indicates that the employers’ organizations are subject to a two-year renewal period. The ITUC stresses that while progress has been made, all these considerations imply that the Government is still not fulfilling the requirements of the Convention. The Organization insists that the Government take the necessary measures to conform fully with the Convention: (i) ensure without delay the full composition of the CST; (ii) simplify and fluidify the process for designating workers’ representatives and (iii) amend the provision of the Labour Code that provides for annual renewal of trade union executive boards. In this regard, the ITUC requests the Government to implement fully the recommendations of the tripartite mission, as well as the conclusions of the Committee on the Application of Standards. The Committee urges the Government to adopt without delay the necessary measures to repeal the legal obligation on trade unions to request renewal of their legal status every 12 months and requests the Government to provide detailed and updated information in its next report on all progress achieved in this respect.

Article 5(1)(b). Effective tripartite consultations. Submission. The Committee notesthe information provided by the Government regarding the ten instruments submitted for examination by the CST on 19 May 2022, before transfer to the Legislative Assembly in order to comply with the obligation of submission provided for in article 19(5) of the Constitution of the ILO. While the Committee welcomes the transmission of these instruments to the CST, it recalls that, to be effective, they must be submitted to the legislative body which, in the case of El Salvador, is the Legislative Assembly. The Committee trusts that the Government will report as soon as possible on the submission of the abovementioned instruments to the legislative body, following their discussion within the CST. The Committee again reiterates that it hopes to see progress in full and sustained compliance with the Convention as soon as possible, including the regular holding of effective tripartite consultations within the CST, on the subjects provided in Article 5 of the Convention, as well as the promotion of stable and continuous social dialogue in the other tripartite entities in the country. In this regard, the Committee recalls that ILO technical assistance remains at the disposal of the tripartite constituents to support the efforts made by all the tripartite actors to ensure full compliance with the provisions of the Convention.