Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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

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The Committee notes the observations of the Trade Union Confederation of Workers of El Salvador (CSTS), received on 17 May 2023. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September and 16 November 2023. Both observations provided information on matters dealt with in this comment, which are examined below. The Government is requested to provide its comments in this regard.

Follow-up to the conclusions of the Committee on the Application of Standards (111th Session of the International Labour Conference, June 2023)

The Committee takes note of the discussion that took place in the Conference Committee on the Application of Standards (hereafter the Conference Committee) in June 2023 with regard to the application of the Convention. In its conclusions, the Conference Committee notes the allegations concerning serious and repeated violations of the Convention by El Salvador. Likewise, the Conference 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 the discussion into account, the Conference Committee urged the Government, in consultation with the social partners, to: (i) immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and adopt measures to ensure that such acts are not repeated, in particular in relation to the National Business Association (ANEP) and its members; (ii) refrain from any interference in the exercise of freedom of association of employers and workers, including in the constitution of workers’ and employers’ organizations; (iii) put a stop to the delays in issuing the credentials of workers’ and employers’ organizations, including for ANEP, in line with their right to representation; (iv) ensure that all workers’ and employers’ organizations, including ANEP, enjoy the rights and freedoms under the Convention and are fully included in tripartite consultation and social dialogue; (v) reactivate, without delay, the full operation of the Higher Labour Council (CST) and other tripartite bodies, as well as ensure the development and adoption, in consultation with social partners, of clear, objective, predictable and legally binding rules to ensure their effective and independent functioning, without any external interference; (vi) take without delay all necessary measures to repeal the legal obligation on trade unions to request renewal of their legal status every 12 months; (vii) amend the 23 decrees adopted on 3 June 2021 to ensure that employers’ organizations are able to exercise their right to freely elect their representatives without any external interference; and (viii) develop a time-bound road map to implement without delay all the recommendations made by the 2022 ILO high-level tripartite mission and the Conference Committee’s recommendations.

The Conference Committee requested the Government to accept a direct contacts mission to ensure full compliance with the Convention. It further requested the Government to submit a detailed report on the implementation of the Convention in law and practice, including information on the content and outcome of the tripartite consultations, to the Committee of Experts by 1 September 2023.

Articles 2 and 3(1) of the Convention. Adequate procedures. Reactivation of the Higher Labour Council (CST). Allegations of Government interference. The Committee notes that the Government’s report – which the Conference Committee requested for June 2023 – was received late, on 29 November 2023, after its session had already started. The Government indicates that the CST has been functioning since its reactivation in 2019, in compliance with the provisions of its Statute regarding the number of sessions required. In this regard, the Government indicates that, in accordance with section 11 of the Statute, at least two meetings per year must be held. The Government reiterates once again that as of December 2021 the CST was established for 2021–23 and that the representatives of workers and employers were freely and independently elected. The Government also states that it is inappropriate to point out the inactivity of the CST on the basis of the meetings of its plenary session. By way of example, the Government refers to the creation by the plenary of the CST of a technical working group consisting of a tripartite commission for the discussion of the Early Childhood Act with a view to subsequently submitting the elements deemed necessary to the CST Board of Directors and ultimately to its plenary. However, the Government indicates that this process could not be completed due to the lack of agreement from some sectors to complement the first steps agreed upon in a tripartite manner. In relation to the repeal of the 23 decrees related to official autonomous institutions, the Government indicates that this is an internal decision that only concerns El Salvador as a free and sovereign State and, therefore, for the time being, no response can be given to such request. The Government indicates that the necessary studies will be conducted to examine the extent to which the said decrees affect ANEP and adds that they refer to bipartite or parity institutions and therefore do not relate to the scope of this Convention. The Government further states that it is inappropriate to state that such decrees affect the productive sector of the country since various employers’ organizations are allowed to participate in bipartite or tripartite forums and ANEP continues to be recognized as a representative organization and its members continue to participate in various forums for dialogue. Lastly, the Government indicates that tripartite institutions, such as the Salvadoran Social Security Institute (ISSS) and the Social Housing Fund (FSV), have a “transparency portal” on their website where they publish their reports, while the minutes and reports of the CST are delivered to all its members and are publicly accessible.

The Committee notes that, in its observations, the IOE reiterates the comments made by the Employer members during the discussion on the implementation of the Convention held in the Conference Committee in June 2023. The Committee also notes the IOE’s allegations denouncing the Government for not accrediting the representatives designated by ANEP to participate in the 111th Session of the Conference, despite it being the most representative employers’ organization of El Salvador. The IOE emphasizes the gravity of such acts and maintains that they are contrary to the present Convention as well as to the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In this connection, the Committee notes that the IOE also denounces the Government for putting pressure on certain employer delegates to quit ANEP leadership. In this regard, the Committee notes with concern that, at the 111th Session of the Conference, the Credentials Committee of the Conference, in its examination of this question, concluded that it had no evidence that the Government had effectively consulted the most representative employers’ organization and, therefore, that the employers’ delegation of El Salvador to this session of the Conference was nominated in accordance with article 3(5) of the ILO Constitution. In this regard, the Credentials Committee trusted that the Government will in future resort to a consultation procedure that will ensure full and effective consultation with the most representative employers’ organization, in accordance with the requirements of the ILO Constitution (see the Second report of the Credentials Committee, 16 June 2023, paragraphs 69–74).

The Committee also notes that the IOE, in its observations, refers to the draft Act to establish the National Capacity-building and Training Institute (INCAF), stressing that the aim of the draft is to dissolve the El Salvador Vocational Training Institute (INSAFORP), together with its Governing Body, which has been holding tripartite meetings for 30 years with representatives of government, workers and employers. The Committee notes that the above draft was adopted by the El Salvador Legislative Assembly on 15 November 2023. The Committee notes that the IOE expresses its hope that progress will be made in the application of the Convention, in accordance with the conclusions of the Conference Committee, and in close collaboration with the most representative organization of employers of El Salvador.

The Committee also notes that the CSTS expresses its willingness to collaborate with and support all efforts by the Government to strengthen all spaces for tripartite social dialogue, such as the CST, the National Minimum Wage Council, and other national instances of bipartite or tripartite dialogue. The CSTS also highlights the importance of tripartite social dialogue and points out that it constitutes a fundamental component for the construction of a democratic country, to generate governance and improve living conditions, especially for the working class.

In light of the information provided by the Government in its report, the Committee emphasizes that, while it is for the national legal framework to establish the modus operandi of the meetings of the bodies in which the tripartite consultations required by the Convention take place, the CST has not held the minimum of two plenary sessions per year required by national legislation. The Committee recalls that, in accordance with Article 5(2) of the Convention, such consultations should be held at least once a year. While noting the Government’s indication concerning the holding of tripartite consultations in the framework of subcommittees or other tripartite technical bodies of the CST, the Committee observes that the Government does not provide information that would make it possible to establish that consultations were held on issues relating to international labour standards as required by Article 5(1) of the Convention. The Committee further notes that the Government also fails to provide information on the measures taken or envisaged with a view to giving effect to the conclusions of the Conference Committee. Accordingly, the Committee once again 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. It reiterates its request to 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.

Likewise, the Committee once again urges the Government to: (i) take the 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; and (ii) make every effort to ensure the formulation and adoption without delay of the road map requested by the ILO high-level tripartite mission in 2022, as well as by the Conference Committee on the Application of Standards in June 2022 and June 2023. In light of the IOE’s observations regarding the Act Establishing the National Capacity-building and Training Institute (INCAF), the Committee requests the Government to provide information on its impact on the implementation of the Convention.

Article 2. Ensure effective tripartite consultations. Issuance of Credentials. The Committee recalls that in its previous comment it noted the observations of the International Trade Union Confederation (ITUC), which highlighted that the requirement under the Labour Code that workers’ organizations renew their executive boards every 12 months was unfounded and constituted a form of interference in the functioning of the organizations in question. In this regard, the Committee noted that the Government had initiated a study process to prepare reforms to the Labour Code with a view to facilitating and speeding up the procedure for the issuance of credentials and that a Trade Union Service Office had been set up in the Directorate General for Labour to provide legal assistance to union representatives. The Committee notes the Government’s indication that it is still working with the social partners on the proposed reforms of the Labour Code, which, once finalized, will be sent to the CST for analysis, review and discussion. The Government indicates that the proposals include the amendments of section 221 of the Labour Code and section 87 of the Civil Service Act, which provide for a one-year term for the boards of directors of trade unions in the private and public sectors, respectively. The Government indicates that, on 26 July 2023, the establishment of a technical roundtable was announced for the purpose of discussing and analysing possible reforms to the Labour Code. The Committee also notes that the Government reports that, between August 2022 and August 2023, the Trade Union Service Office, created to reduce the period for issuing credentials to trade unions to less than 30 days, delivered 875 accreditations and provided 969 advisory services. The Government indicates that the deliveries were made in an average of 15 days. While noting the measures taken by the Government to expedite the issuance of credentials, the Committee considers that the requirement to renew annually the composition of the boards of directors of trade unions and their legal status is a disproportionate measure that impedes the proper functioning of the tripartite bodies responsible for giving effect to the Convention. The Committee therefore once again urges the Government to adopt without delay the necessary measures to repeal the legal obligation on trade unions to renew the composition of their boards of directors and 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. Effective tripartite consultations. The Committee notes the copies of the letters dated 19 May 2022 (DM/DRIT/No.28/2022) and 1 September 2022 (DE/DRIT/No.38/2022), sent by the Government to the employer and worker vice-chairpersons of the CST with a view to their dissemination with the organizations grouped in their sectors. The Government indicates that it has not received any reply from the social partners in this respect. The Committee also notes of the copies of letters dated 13 March 2023 (DM/DRIT No.78/2023 and DM/DRIT No.79/2023), presented by the Government after the discussion in the Conference Committee in June 2023, by which the Ministry of Labour and Social Welfare conveyed copies of the reports on the implementation of Conventions ratified by El Salvador to the employer and worker vice-chairpersons of the CST for their comments. The Committee notes that some of these reports were sent to the office in 2022 and others in March 2023. In this regard, the Committee recalls that “in order to be effective, consultations must take place before final decisions are taken, irrespective of the nature or form of the procedures adopted. … The effectiveness of consultations thus presupposes in practice that employers’ and workers’ representatives have all the necessary information far enough in advance to formulate their own opinions.” (General Survey on tripartite consultation, 2000, paragraph 31). In consequence, the Committee once again reiterates that it hopes to see progress in full and sustained compliance with the Convention in the country as soon as possible, including the regular holding of effective tripartite consultations within the CST on the subjects provided in Article 5(1) 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 once again 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.