Informe provisional - Informe núm. 389, Junio 2019

1. 319. The complaint is contained in a communication dated 28 October 2016 from the National Confederation of Workers of El Salvador (CNTS), and in two communications dated 5 June and 19 October 2017 from the Trade Union Council of El Salvador (CONSISAL).
2. 320. The Government sent its observations in a communication dated 30 April 2018.
3. 321. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

National Confederation of Workers of El Salvador

1. 322. In its communication dated 28 October 2016, the National Confederation of Workers of El Salvador (CNTS) alleges that the Ministry of Labour and Social Welfare (MTPS) is imposing arbitrary conditions, which are not specified either in the Constitution or in legislation, for registering trade union executive committees and the issuing of accreditation to their members, including the requirement to provide the payslips and individual identity documents of executive committee members. According to the complainant, the Government’s intention in not granting full accreditation to executive committee members was to leave both its trade union confederation and affiliated organizations without leadership in order to obstruct their participation in tripartite and bipartite bodies and prevent the organizations concerned from demanding that the labour rights of their members be upheld in accordance with applicable collective agreements.
2. 323. The CNTS notes that, on 13 July 2016, it submitted a request for the registration of its new executive committee to the National Department of Social Organizations (DNOS) of the MTPS. On 28 July 2016, the complainant was notified in a decision issued by the DNOS that, in order to proceed with the registration of the new executive committee, the confederation had to submit a new record showing the exact number of persons present at the time voting took place, as well as an uncertified copy of the payslips or certificate of salary payment of the persons elected to the executive committee. This requirement had to be met within five working days from the day after the notification.
3. 324. On 12 August 2016, the DNOS notified the CNTS that it was apparent from an analysis of the documents submitted that the conditions had only been partially met and that, as a result, the following vacancies remained open: (i) secretary for agricultural and environmental matters because, given that no payslip was submitted, it was not possible to verify the employment relationship between the worker and the enterprise; and (ii) organization secretary because, given that the union member elected, Mr Cesar Emilio Zetino Consuegra, works for the Los Lagartos agricultural production cooperative association, a limited liability enterprise, and as a casual worker in the sugar cane and coffee industry, he would be excluded from being a member of the executive committee under the terms of section 25(a) of the Labour Code.
4. 325. In addition, the complainant alleges that, on 23 August 2016, the DNOS requested the Union of Workers in the Cotton, Synthetics, Similar or Related Industries (STIASSYC) to provide an updated list of all members of the trade union, likewise giving a deadline of five working days to provide the document.
5. 326. With respect to the above-mentioned conditions, in the complainant’s view: (i) no provisions of section 225 of the Labour Code stipulate that payslips and individual identity documents must be requested; (ii) the decision to exclude Mr Zetino Consuegra from becoming organization secretary because he was a casual worker in the sugar cane and coffee industry is erroneous pursuant to section 25(a) of the Labour Code, given that this provision has nothing to do with prohibiting casual workers from being members of union executive committees and, if that were the case, the provision would be discriminatory and contrary to articles 3 and 47 of the Constitution; and (iii) the conditions imposed on its confederation and other affiliated organizations are not found in ILO Conventions, in the Constitution of El Salvador or in legislation and, therefore, imposing such conditions would constitute an arbitrary act.

Trade Union Council of El Salvador

1. 327. In a communication dated 5 June 2017, the Trade Union Council of El Salvador (CONSISAL) alleges that the MTPS refused to register and grant accreditation to the executive committees of 20 unions affiliated to its confederation (the Independent Union of Agricultural Workers in the San José de la Montaña Canton (SITRAM), the General Trade Union of Workers in the Fishing and Allied Industries (SGTIPAC), the Independent Union of Commercial Workers in Colonia Las Flores (SITRACOF), the Independent Union of Retail Workers in Jerusalén (SICOJ), the Independent Union of Agricultural Workers in the El Espino Canton (SITRACE), the Union of Independent Craftspersons in Santa María Ostuma (SINAISMO), the Trade Union Federation of Registered Workers of El Salvador (FESTRAIS), the Trade Union Federation of Agricultural and Commercial Workers (FESTRAC), the Western Trade Union Association of Small Retailers (ASPECO), the Association of Merchant Seafarers of El Salvador (AMMS), the Independent Union of Agricultural Workers in the Tepeagua Canton (SITRACT), the Union of Agricultural Producers in the San Felipe Canton (SIPROACASF), the Union of Independent Commercial Workers in Nueva San Salvador (SITICONSS), the Union of Agricultural Workers in the Achichilco Canton (SINTRACA), the Union of Commercial Workers in La Unión (SITRACUN), the Union of Agricultural Workers in the La Labor Canton (SITRACL), the Independent Union of Artisanal Fishers in Zacatecoluca (SINPEZ), the Independent Union of Professionals and Technicians of El Salvador (SIPROTES), the Union of Agricultural Producers in Santo Domingo (SIPROASD) and the Union of Small Agricultural Producers in the Galeano Canton (SIPEACG)), leaving them without leadership.
2. 328. The complainant considers that the line of action taken by the DNOS is aimed at eliminating all trade unions that are not sympathetic to the Government’s political aspirations, by obstructing the processes and procedures for their formation and for the election of executive committees. The complainant considers that the imposition of conditions not provided for in labour regulations, and the subsequent ineligibility of the requests attached to the conditions, was aimed at leaving the trade unions without leadership, and further considers that the Government intends to base its measures on the provisions of sections 222, 225 and 256 of the Labour Code, sections 8(b) and 22(b) of the Act on the Organization and Functions of the Labour and Social Welfare Sector and the Special Act on Regulating the Issuance of the Individual Identity Document, and considers, with respect to the latter law, that this is not a labour regulation and therefore does not apply to the registration of executive committees and the issuing of accreditation to their members.
3. 329. The complainant points out that the documentation required, namely photocopies of individual identity documents (or, failing this, the birth certificates or passports of each elected member), payslips (or any other document verifying the names or posts held by the workers in the places where they work, such as certificates of salary payment stamped and signed by the human resources manager of the enterprises where the elected workers carry out their duties as members of the executive committee) and the submission of a list of members (in original or photocopy, stamped and signed by all members present at the session of the general assembly at which the members of the executive committee were elected), is excessive and contains private data and classified information on each individual.
4. 330. The complainant also states that the imposition of conditions not provided for in labour regulations is a strategy devised by the Farabundo Martí National Liberation Front (FMLN), the party in power at the time the complaint was submitted, as a way to prevent participation in the tripartite bodies by majority organizations that do not support the Government and that are part of the Salvadorian Labour Movement.
5. 331. The complainant also alleges irregularities in the elections of worker members in various tripartite councils, referring in particular to: (i) the election of members to the National Minimum Wage Council on 5 December 2016, when the Government, far from adhering to the procedure laid down in current regulations adopted by tripartite consensus, made use of a government decree to elect four persons from pro-Government union organizations; (ii) during the May and July 2016 elections of new worker members to the governors’ assembly of the Housing Social Fund, the MTPS had reportedly altered the number of members of the Union of Construction and Related Workers of El Salvador (STRACOCS), affiliated to the complainant organization, to ensure that none of its representatives would be in the Housing Social Fund; (iii) at the same time, it reportedly increased the number of members of the Union of Construction Workers (SUTC), a pro-Government organization, resulting in the election of a representative from that union who, according to the rules of procedure, was ineligible because the person had been accused of an offence; and (iv) during the elections of worker representatives to the Higher Labour Council in 2013, after the majority of representatives appointed were from unions that were not sympathetic to the Farabundo Martí National Liberation Front, the tripartite body was left without leadership and nothing has been done to date to reactivate the Higher Labour Council.
6. 332. In its communication dated 19 October 2017, the CONSISAL also alleges that, on 14 July, 8 and 16 August and 4 September 2017, the Union of Independent Commercial Workers in Puerto de la Libertad (SITRAINCOP), the Union of Agricultural Producers in the La Esperanza Canton, San Sebastián District (SIPROACESS), the Union of Commercial Workers in Colonia Agua Caliente (SITRACCAC) and the Independent Union of Agricultural Workers in the Chaperno Canton (SITRACH) requested the registration of their executive committees and the issuance of accreditation to their respective members. The requests were refused, leaving the organizations without leadership. The confederation requests the Committee to overturn these decisions because they are inconsistent with legislation, the Constitution and the aforementioned Conventions.

B. The Government’s reply

1. 333. In its communication dated 30 April 2018, the Government refers, on the one hand, to the complainants’ allegations concerning the imposition of conditions not provided for in the Constitution or legislation for registering the executive committees of first-, second- and third-level trade unions. In this connection, the Government considers that the allegations are unwarranted and baseless, given that the conditions imposed by the DNOS of the MTPS for registering executive committees can be found in domestic legal regulations. The Government indicates that the requirement to provide photocopies of the individual identity documents of the persons elected to executive committees is provided for in section 3 of the Special Act on Regulating the Issuance of the Individual Identity Document, which provides that: “the individual identity document is the official document, which is sufficient and necessary to identify unequivocally all natural persons who are nationals of El Salvador in any public or private act, both at home and abroad”, this being the only valid document through which persons who are members of executive committees can be identified. Similarly, this condition would be consistent with the requirements for membership of executive committees set out in section 225(1) and (2) of the Labour Code that members should be nationals of El Salvador by birth and over the age of 18. With regard to the requirement to attach to the request the payslip or employment certificate, they are required pursuant to section 225(5) of the Labour Code, which provides that membership of an executive committee also requires members “not to be employed in positions of trust or representatives of the employer”. This requirement therefore serves to corroborate the strict employment relationship between the persons elected and the institution or enterprise for which they provide their services, and emphasizes that this requirement does not apply in the case of independent unions. With regard to the requirement to provide a list of all persons present when the executive committee was elected, the Government states that this requirement is intended to verify that the members of the executive committee were actually present at the assembly in question, given that cases have been reported of elected persons not being present at the assembly during which they were elected, as well as to ensure that the number of votes matches the number of persons present at the meeting.
2. 334. The Government also indicates, with regard to the registration of the CNTS executive committee, that this confederation submitted documentation on 13 July 2017 and that documentation verifying the members of its executive committee was submitted on 7 August 2017. With regard to the registration of the executive committee of the STIASSYC, the Government notes that, on 11 December 2017, this union submitted documentation for the registration of its executive committee, that on 19 January 2018 it was notified that it had to submit a list of all its members, including their full names and copies of their individual identity documents. These documents were provided and the executive committee was registered on 31 January 2018.
3. 335. With regard to the confidentiality of documents forwarded by trade unions, the Government indicates that, in order to safeguard the extreme confidentiality of the documents requested, as well as the legal security of executive committees, the accreditations of members of executive committees should not be sent by post, and that the DNOS recently adopted a directive to notify each executive committee by telephone when their accreditation and cards are ready for collection.
4. 336. Lastly, the Government states that the trade union organizations SITRACH, SITRACCAC, SIPORACESS, SITRAINCOP, SIPROTES and SITRACL have been left without leadership because, even though they were given time to address any shortcomings in their applications, namely to submit the individual identity documents of their executive committee members, the above unions failed to submit any of the documents requested and their applications were therefore declared inadmissible.

C. The Committee’s conclusions

1. 337. The Committee observes that this case refers, firstly, to the alleged imposition of arbitrary conditions for registering trade union executive committees and the issuing of accreditation to their members and to the subsequent refusal of the labour administration to register the executive committees of a number of trade union organizations and, second, to alleged irregularities in the elections of worker representatives in tripartite bodies.
2. 338. With regard to the alleged imposition of arbitrary conditions for registering trade union executive committees, the Committee notes that the complainants allege in general terms that: (i) the Ministry of Labour and Social Welfare (MTPS) makes the registration of executive committees dependent on the submission of the individual identity documents and payslips of members of those committees, as well as the signed list of the members of the union who were present at its general assembly; (ii) the conditions imposed are both unduly demanding and arbitrary, given that they are not provided for in legislation; and (iii) the imposition of the conditions in question were intended to obstruct the processes and procedures for the election of executive committees that did not support the Government at the time the complaint was presented and to prevent their members from being elected to various tripartite bodies. The Committee further notes, more specifically, that: (i) the National Confederation of Workers of El Salvador (CNTS) alleges that the MTPS refused to register two members of its executive committee because, firstly, it had failed to submit the payslip of a union official and, second, that another union official, elected to the post of organization secretary, only worked on a casual basis; (ii) the CNTS alleges that, on 23 August 2016, the National Department of Social Organizations (DNOS) had requested the Union of Workers in the Cotton, Synthetics, Similar or Related Industries (STIASSYC) to provide an updated list of all members of the trade union; and (iii) the Trade Union Council of El Salvador (CONSISAL) alleges that the DNOS arbitrarily refused to register and issue accreditation for the executive committees of 24 trade unions affiliated to its confederation.
3. 339. The Committee observes that the Government states with regard to the alleged imposition of arbitrary conditions that: (i) section 3 of the Special Act on Regulating the Issuance of the Individual Identity Document provides that the document in question is the only valid document through which persons who are elected as members of executive committees can be identified; (ii) one of the requirements for membership of executive committees under section 225(1) and (2) of the Labour Code is for members to be Salvadoran by birth and have attained the age of majority; (iii) section 225(5) of the Labour Code provides that one of the requirements for membership of executive committees is for members not to be employed in positions of trust or representatives of the employer, hence the requirement to attach to the request the payslip and employment certificate; and (iv) the requirement for the list of those present at the assembly where the members of the executive committee were elected arises from the need to check that the persons who are members of the executive committee were present at the assembly and to verify whether the number of votes matches the number of persons present. With regard to the specific allegations concerning the refusal to register 26 executive committees, the Committee observes that the Government indicates that: (i) the executive committees of the CNTS and the STIASSYC were registered once any shortcomings in meeting the conditions imposed by the DNOS had been addressed; and (ii) the trade union organizations SITRACH, SITRACCAC, SIPORACESS, SITRAINCOP, SIPROTES and SITRACL failed to submit the documentation requested and that is why they have been left without leadership.
4. 340. The Committee recalls that it has already had occasion in the past to examine allegations of the imposition of excessive conditions for the registration of executive committees in El Salvador. In Case No. 3136 [see 377th Report, para. 326], the Committee had noted the Government’s indication that, in order to register members of executive committees, trade unions should, in accordance with section 225 of the Labour Code, submit a copy of their individual identity documents and payslips to verify whether executive committee members were Salvadorans by birth and had attained the age of majority, and that they were not employed in positions of trust or representatives of the employer. On that occasion, the Committee had recalled concerning the requirement to be Salvadoran by birth that legislation should be made flexible so as to permit the organizations to elect their leaders freely and without hindrance, and to permit foreign workers access to trade union posts, at least after a reasonable period of residence in the host country [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 623].
5. 341. The Committee therefore refers to its conclusions in Case No. 3136 concerning the requirement to be Salvadoran by birth and again expresses the hope that the Government will take all steps, including legislative measures, to ensure that section 225 of the Labour Code and its application are consistent with the right of workers to elect their representatives in full freedom. Regarding the allegation of the CNTS concerning the refusal of the labour administration to register one of its executive committee members because of the casual nature of his work, the Committee recalls that it is the prerogative of workers’ and employers’ organizations to determine the conditions for electing their leaders and the authorities should refrain from any undue interference in the exercise of the right of workers’ and employers’ organizations freely to elect their representatives, which is guaranteed by Convention No. 87 [see Compilation, op. cit., 2018, para. 588]. Recalling that all workers must be able to enjoy the right to freedom of association regardless of the type of contract by which the employment relationship has been formalized [see Compilation, op. cit., 2018, para. 327] , the Committee requests the Government to take appropriate steps to ensure that, irrespective of the worker’s type of contract, trade unions may freely appoint members of their executive committees. The Committee requests the Government to keep it informed in this respect.
6. 342. As for the complainants’ specific allegations regarding the refusal to register 26 executive committees, the Committee observes that: (i) the Government provides its observations on eight of the 26 trade unions concerned, indicating that two executive committees were registered once any shortcomings in meeting the conditions imposed by the labour administration had been addressed, while the applications of the other six organizations were declared inadmissible due to the failure to submit the documentation required; and (ii) it is clear from the above, as well as from the complainants’ allegations, that most of the trade unions mentioned in the complaint have been left without leadership. Considering that the accreditation procedures for workers’ organizations and their executive committees should include formal verifications carried out expeditiously and in a consistent manner, the Committee requests the Government, in consultation with the most representative trade union organizations, to take the necessary steps to review the rules applicable to the registration of executive committees in order to guarantee the right of organizations to elect their representatives in full freedom and to ensure a swift process. In the light of the foregoing, the Committee requests the Government, in consultation with the organizations concerned, to expedite the pending registrations of the executive committees of the trade unions mentioned in this case. Reminding the Government that it can avail itself of ILO assistance, the Committee requests the Government to keep it informed in this regard.
7. 343. Concerning the steps taken by the Government to exclude trade unions that do not support the Government from various tripartite bodies, and the irregularities in the appointment of worker representatives in those bodies, alleged by the CONSISAL, the Committee notes that, according to this complainant: (i) during the elections of the National Minimum Wage Council, on 5 December 2016, the Government, ignoring the institution’s regulations adopted by tripartite consensus, elected four persons from pro-Government trade unions; (ii) during the elections of governor members of the Housing Social Fund, the Government had altered the number of members of the Union of Construction and Related Workers to prevent any of its representatives from participating in that body and had increased the number of members from a pro-Government trade union with the aim of increasing its representation in the governors’ assembly; and (iii) during the elections of worker representatives to the Higher Labour Council, after the appointment of a majority of representatives from trade unions that were not pro-Government, the tripartite body was left without leadership, and nothing has been done to date to remedy the situation.
8. 344. While noting that the Government did not transmit its observations on this matter, the Committee observes that the allegations made by the complainant relating to the suspension of the Higher Labour Council are still being examined by the Committee in Case No. 3054. In this case, the Committee underlined the urgent need for in-depth consultations with the confederations and federations in order to establish clear and stable rules for the appointment of worker representatives to the CST (particularly when there is no single list of worker representatives) which respect the criterion of representativeness and requested the Government to keep it informed in this regard. Taking into account the urgency of this situation the Committee also invited the Government to accept an ILO technical assistance mission to help in finding a solution to the issues raised [see 375th Report, para. 328]..Observing that the ILO has been providing technical assistance to the Government in respect of the determination of criteria to establish trade union representation, the Committee refers to its recommendations in Case No. 3054 and urges the Government to reactivate the Higher Labour Council as soon as possible.
9. 345. With regard to the alleged irregularities in the appointment of worker representatives to the National Minimum Wage Council and the Housing Social Fund, the Committee recalls that it has already had occasion to examine similar allegations in Case No. 2980 a case brought by an employers’ organization. In that case, the Committee requested the Government to ensure that the representatives of workers’ and employers’ organizations on tripartite bodies are appointed by them freely, and that in-depth consultations are urgently held with those organizations within the Higher Labour Council, so that mutual agreement can be reached on ensuring the balanced tripartite composition of the management boards of the autonomous institutions referred to in the complaint (notably the ISSS, the FSV and the NIVT), and that the shared decision so reached is submitted without delay to the Legislative Assembly in the course of its examination of the legislative reform previously proposed by the Government. [see 368th Report, para. 321]. Regretting that no progress has been made in that respect, the Committee insists, once again, that pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments [see Compilation, op. cit., para. 530]. In view of the above, the Committee urges the Government to respond without delay to the allegations made by the complainant regarding the appointment of worker representatives in the National Minimum Wage Council and the Housing Social Fund. The Committee also expresses the hope that the Government will ensure that the appointment of worker representatives to tripartite bodies will be based on objective, precise and pre-established criteria on representativity, and that any dispute as to the appointment of those representatives will be resolved by an independent body. Regretting that this situation has persisted for years, and reminding the Government that it can continue to benefit from the Office’s technical assistance, the Committee requests the Government to keep it informed in this regard.