Rapport définitif - Rapport No. 382, Juin 2017

1. 297. The complaint is contained in a communication dated 15 January 2015 from the Union of Water Workers (SITIAGUA).
2. 298. The Government sent its observations in communications dated 31 October 2016 and 6 March 2017.
3. 299. 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 complainant’s allegations

1. 300. In its communication of 15 January 2015, SITIAGUA alleges that the competent authorities imposed discretionary guidelines not envisaged by law with regard to the registration of its executive committee, violating the right to a guarantee of trade union immunity and leaving the union with no official leadership.
2. 301. The complainant maintains that on 21 October 2014, its General Secretary submitted to the National Department of Social Organizations in the Ministry of Labour and Social Security a request for the registration of its general executive committee and the issuance of accreditation and cards to its elected officers. Although the law requires a reply within 15 working days, none was received until 35 working days had passed. In order to rectify the application, the reply requested submission of: (i) a copy of the individual identity document, passport or birth certificate of each of the elected officers; and (ii) a payslip or other recent document showing that they were currently employed.
3. 302. SITIAGUA alleges that these requirements exceed the powers of the National Department of Social Organizations because they are not envisaged by law. The complainant also indicates that these requirements were not listed on the Department’s website when the request was made.
4. 303. The complainant argues that this refusal to register the executive committee violated its constitutional right to trade union immunity. It had met the criteria established by law but because it had not fulfilled a discretionary requirement set by the authorities, 125 days had passed since the election of the executive committee’s members and their respective credentials had yet to be issued as at the date on which the complaint was made. Thus, the authorities’ decision left the union with no official leadership and prevented it from bringing legal proceedings in defence of its members’ rights.
5. 304. In that connection, SITIAGUA states that the authorities’ actions violated not only its constitutional right to trade union immunity, but also the principle of legal certainty; since 2009, it has submitted five requests for the registration of and issuance of accreditation to the members of its executive committee and the authorities have granted these requests without requesting the submission of copies of individual identity documents (or passports or birth certificates) or payslips for the elected individuals. The trade union contests this change in administrative criteria and maintains that the authorities may not arrogate to themselves powers not expressly envisaged in the Labour Code or other legislation.

B. The Government’s reply

1. 305. In its communication of 31 October 2016, the Government indicates that the security notice of 17 November 2014 contested by the complainant was not a denial of the request, but rather an invitation to rectify it by submitting the necessary documents. Thus, it cannot be considered an obstacle to trade union activity as SITIAGUA claims.
2. 306. The Government emphasizes that rectificatory security measures (requests for copies of the passport or birth certificate of each of the elected officers and of payslips or other recent documents as proof of current employment) is grounded in national legislation and case law. As the country’s Supreme Court has recognized, the registration of executive committees is not a discretionary act but a regulated function of the administration and the process entails verification that the legal requirements have been met. The Government stresses that the security measure was not discretionary or arbitrary; submission of the requested documents was necessary in order to show that the criteria established in the country’s Constitution (article 47 on nationality) and Labour Code (article 225 of which requires that the applicant be a national of El Salvador, have attained the age of majority, be a member of the trade union and not be employed in a position of trust or a representative of the employer).
3. 307. The Government maintains that the authorities are not responsible for the fact that the trade union has no official leadership since that situation could have been rectified; it is a consequence of the complainant’s obstinacy despite the authorities’ many attempts to facilitate rectification. In that regard, the Government states that: (i) in order to facilitate compliance, the security notice offered as an alternative the submission of documents other than the individual identity document (for example, the passport or birth certificate); (ii) on 1 October 2015, after the security notice had been sent, an effort to communicate with the founder of SITIAGUA (who signed the complaint presented to the Committee) was made with a view to dialogue aimed at rectifying the request so that the requested registration and granting of accreditation could be carried out, but there was no reply of any kind; and (iii) a final notification was sent to this trade union leader by note dated 22 April 2016, in which the General Director for Labour invited him to meet with her on 3 May 2016 in order to discuss the legal status of the executive committee of SITIAGUA and to urge the organization to submit the remaining documents so that it could receive its accreditation and cards. The elected General Secretary of the executive committee of SITIAGUA (Mr Alejandro Alvarenga Vásquez) and a lawyer representing the trade union’s leader attended the meeting, during which it was explained to them that the purpose of the meeting was to share the Ministry’s concern that over a year had passed since the date on which the trade union had been notified and to explain the legal reasons for the requirement. Although the union’s representatives took note of this explanation, as at the date of the Government’s most recent communication no other representative of SITIAGUA had contacted the authorities in order to meet the requirement. The Government requests the Committee to urge the complainant to come to the Ministry of Labour and Social Welfare in order to rectify the security measures taken so that the trade union can be registered, the members of its executive committee can be issued accreditation and its status can be legalized.
4. 308. With respect to the alleged change in administrative practice, the Government states that while previous administrations did not verify compliance with some of the legal requirements for the registration of executive committees, this approach led to serious problems in practice, including the existence of executive committees made up of foreign nationals or of employees in positions of trust and representatives of the employer, and to legal issues regarding the identity of the officers (the names of the individuals in question were not checked against official documents because they were wrongly listed in the minutes of the assembly).

C. The Committee’s conclusions

1. 309. The Committee observes that, in the present case, the complainant organization alleges the refusal to register the general executive committee of SITIAGUA through the imposition of discretionary guidelines by the National Department of Social Organizations in the Ministry of Labour and Social Security. The Committee also observes that, according to the Government, the contested decision did not constitute a discretionary refusal to register the executive committee, but merely a request for the necessary documentation (national identity documents and payslips) to be submitted in order to enable verification of compliance with the requirements applicable to the members of the executive committee under the Constitution of El Salvador and the Labour Code.
2. 310. In this regard, the Committee wishes to recall once again that the requirements established in national law relating to the registration of executive committees must be in conformity with the principles of freedom of association, in particular the right of the workers freely to elect their representatives. The Committee takes note of the Government’s statement that it required the submission of copies of individual identity documents and payslips in order to verify compliance with the legal requirements, in particular that members of executive committees should be nationals of El Salvador by birth, have attained the age of majority and not be employed in positions of trust or representatives of the employer.
3. 311. The Committee recalls: (i) as to the requirement that members should be nationals of El Salvador by birth, the principle 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; and (ii) as to the requirement that members of an executive committee must have attained the age of majority, that its imposition constitutes a restriction of the right of the workers freely to elect their representatives (see Case No. 3136 (El Salvador), para. 326, 377th Report). Furthermore, the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has requested the Government to take measures to amend article 47(4) of the national Constitution, section 225 of the Labour Code and section 90 of the Civil Service Act, which establish the requirement to be “a national of El Salvador by birth” in order to hold office on the executive committee of a trade union.
4. 312. In view of the fact that El Salvador has ratified Convention No. 87 and the special situation in the country, the Committee requests the Government to send detailed information to the CEACR on the measures taken to adapt the regulations on the formation and registration of executive committees in line with the principles of freedom of association, and draws the attention of the CEACR to the legislative aspects of this case.
5. 313. Lastly, taking due note of the Government’s statement regarding its efforts to enter into dialogue with SITIAGUA so that the trade union can rectify its request and obtain the registration of its executive committee, the Committee invites the complainant to contact the authorities in order to rectify its status in accordance with the principles of freedom of association.