Observation (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

1. Articles 2, paragraph 1, and 25 of the Convention. Trafficking in persons, and penalties. In its previous observation, the Committee referred to comments from the Inter-Union Commission of El Salvador and the International Confederation of Free Trade Unions (ICFTU). Both these organizations referred to trafficking in women and young persons for the purposes of forced prostitution as a considerable problem. As regards the trafficking of young persons, the Committee considers that this is an issue that can be examined in connection with the application of the Worst Forms of Child Labour Convention, 1999 (No. 182), also ratified by El Salvador. It accordingly refers the Government to its comments under that Convention.

The Committee notes the Concluding Observations of the Committee on the Elimination of All Forms of Discrimination Against Women (A/58/38, paragraph 271), in which the abovementioned Committee noted with concern the problem of trafficking and sale of women and girls and the lack of studies, analyses and statistics.

The Committee observed that trafficking in persons is a serious violation of the Convention and urged the Government to take the necessary measures to prevent and combat it. It asked the Government to provide copies of court decisions handed down pursuant to sections 367 and 370 of the Penal Code, under which trafficking in persons for any purpose, and organizing or belonging to international organizations involved in the trafficking of slaves or the sale of persons, are punishable by a prison term of from four to eight years and from five to 15 years, respectively. It also requested the Government to provide copies of the Santa Ana and San Salvador Municipal Codes on the trafficking of women.

In its report, the Government indicates, in connection with sections 367 and 370 of the Penal Code, that a number of court cases are under way and that the Committee will be informed of the judgements as soon as they have been given. The Committee notes with concern that until now no penalty has been imposed under the provisions of the Penal Code which punish the trafficking, and it reminds the Government in this respect that the Convention requires the exaction of forced labour to be punished as a penal offence by penalties that are really adequate and strictly enforced (Article 25).

The Committee hopes that in its next report the Government will provide information on the measures taken to prevent and combat trafficking in persons, including the court judgements handed down pursuant to sections 367 and 370 of the Penal Code, and copies of the Santa Ana and San Salvador Municipal Codes on the trafficking of women.

2. Overtime in the maquila industry. The Committee noted in its previous observation the comments made by the Inter-Union Commission of El Salvador on the situation of the many workers in maquilas who are required, under threat of dismissal, to work overtime in excess of the limits laid down in the national legislation and without pay. The Committee noted that, according to the above organization, maquila companies set production targets which require employees to work beyond the ordinary working day, without pay and under threat of dismissal.

The Committee requested the Government to provide information on the average number of additional hours worked by workers in the maquila sector and to indicate the measures taken or envisaged to protect workers in this sector against the imposition of compulsory labour.

In its report, the Government states that offices of the Ministry of Labour and Social Welfare have been established in the export processing zones of Exporsalva, American Park and El Progreso and that their role is to serve as mediators after the means of redress afforded by the enterprises have been exhausted. The Committee requests the Government to provide information on the activities of the abovementioned offices, indicating in particular the number of instances in which workers have alleged imposition of labour outside the ordinary working day.

3. Article 2, paragraph 2(c). Inmates’ consent for work in private enterprises. In its previous observation, the Committee referred to section 107 of the Prisons Act under which "convicted persons shall be obliged to work", and observed that this provision did not allow the inference that work by detainees for private entities is of a voluntary nature.

The Government responds in its report that the abovementioned provision refers to maintenance activities (cleaning, etc.) in prison premises.

The Committee observes, however, that section 112 of the Prisons Act establishes that in every prison an office shall be responsible for assigning work to the inmates (subsection 1) and that the Ministry of Justice may conclude agreements with national or foreign natural or legal persons to organize agricultural, industrial or commercial undertakings (subsection 3).

The Committee reminds the Government that, when a private undertaking is involved in work performed by inmates, the latter must be able to give their consent to the employment relationship and that, moreover, the conditions of work must resemble those of a freely contracted work relationship. The Committee notes with interest in this connection that section 110 of the Prisons Act provides that private entities which engage detainees shall pay no less than the minimum wage required for such work. The Committee requests the Government to indicate whether, pursuant to section 112(3) of the Prisons Act, the Ministry of Justice has concluded agreements with natural or legal persons to organize agricultural, industrial or industrial commercial undertakings. Please also indicate the measures taken or envisaged to ensure that work by detainees for private enterprises is voluntary in nature.