Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 144) sur les consultations tripartites relatives aux normes internationales du travail, 1976 - El Salvador (Ratification: 1995)

Autre commentaire sur C144

Observation

Demande directe

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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.]