Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - El Salvador (Ratification: 2006)

Other comments on C098

Observation

Direct Request

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The Committee notes the Government’s detailed reply to the comments from the International Trade Union Confederation (ITUC) of 2008 and 2009. The Committee also notes the recent comment from the ITUC, dated 4 August 2011, referring to anti-union practices and dismissals. The Committee requests the Government to send its observations thereon.

The Committee also notes the technical assistance given in 2009 to the constituents of the country, concerning training and practice relating to Convention No. 98, and the Labour Relations (Public Service) Convention, 1978 (No. 151).

Article 2 of the Convention. Protection against acts of interference. In its previous comments the Committee noted that section 205 of the Labour Code and section 247 of the Penal Code provide for protection against certain acts of interference and asked the Government to take the necessary steps, in the context of the process to revise labour law, to provide explicitly in the legislation for a prohibition on all acts of interference referred to in Article 2 of the Convention, in particular acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of the employers or employers’ organizations. The Committee requests the Government to take the necessary measures, in the context of the process to revise labour standards as mentioned in its previous report, to complete the existing provisions providing protection against acts of interference, together with penalties that constitute sufficiently dissuasive sanctions.

Article 4. Collective bargaining. In its previous comments the Committee noted that under sections 270 of the Labour Code (concerning the conclusion of the first collective agreement in an enterprise or establishment) and 106 and 123 of the Civil Service Act, a trade union must have as members no less than 50 per cent of the workers of the enterprise, establishment or institution, in order to be able to initiate the collective agreement or to engage in collective bargaining. It asked the Government to take the necessary measures to amend the abovementioned sections to ensure that when there is no union that covers more than 50 per cent of the workers, all the unions are granted the right to engage in collective bargaining, at least on behalf of their own members. The Committee notes the Government’s indication that section 270 of the Labour Code and also sections 106 and 123 of the Civil Service Act are not being reformed and that it will send notification of any changes in this respect. The Committee also notes that the Government adds that section 271(2) of the Labour Code provides that if two or more trade unions have members in the same enterprise or establishment but neither of them has at least 51 per cent of the total number of workers, either of the enterprise or of the establishment, these unions may unite with a view to achieving the aforementioned percentage, in which case the employer shall be obliged to negotiate and conclude a collective agreement with the united unions, if the latter make a joint request to this effect. While noting the possibility for two trade unions in the same enterprise to unite with a view to achieving the minimum percentage of representation to engage in collective bargaining, the Committee hopes that the Government will take the necessary measures to amend sections 270 and 271 of the Labour Code and sections 106 and 123 of the Civil Service Act in such a way that when no union covers more than 50 per cent of the workers, all unions are given the right to engage in collective bargaining, at least on behalf of their own members.

Revision of collective agreements. In its previous comments the Committee noted that section 276(3) of the Labour Code provides that “if the economic conditions in the country or enterprise should change significantly, either party may request the revision of the collective labour agreement, provided that the agreement has been force for at least one year” and asked the Government to take the necessary measures to amend section 276(3) of the Labour Code in order to ensure that the renegotiation of existing collective agreements shall be possible only at the request of the parties concerned. The Committee notes the Government’s indication that to date there are no plans to reform section 276 of the Labour Code and that it will send any information in due course on any changes in this respect. The Committee recalls that to impose by law the renegotiation of existing agreements is in principle contrary to the principles of free and voluntary collective bargaining laid down in the Convention. The Committee therefore requests the Government once again to take the necessary measures to amend section 276(3) of the Labour Code, in order to ensure that the renegotiation of existing collective agreements shall be possible only at the request of the parties concerned.

Registration of collective agreements. In its previous comments, referring to section 279 of the Labour Code – which provides that a decision by the Director-General of Labour to deny registration of a collective agreement is not open to judicial review –, the Committee noted the Government’s explanation that the prohibition on challenging the Director-General’s decision in section 279 refers only to administrative channels, meaning that administrative remedies have been exhausted and judicial channels of appeal are open, in accordance with section 7(a) of the Act concerning the settlement of administrative disputes. The Committee considered that, in order to avoid any confusion, it would be advisable to amend section 279 to make it plain that the Director-General’s decision may be challenged before the judicial authority. The Committee once again requests the Government to consider the possibility of amending section 279 of the Labour Code in order to expressly provide in the legislation that the Director-General’s decision may be challenged before the judicial authority. The Committee requests the Government to provide information on any further developments in this respect.

Approval of collective agreements concluded with a public institution. In its previous comments the Committee noted that, under sections 287 of the Labour Code and 119 of the Civil Service Act, in order to be valid, collective agreements require the approval of the relevant ministry and the prior opinion of the Ministry of Finance. The Committee previously requested the Government to take the necessary steps to amend section 287 of the Labour Code and section 119 of the Civil Service Act in order to remove the requirement of prior ministerial approval for collective agreements to be able to come into force. The Committee notes the Government’s statement that the planned reform of section 287 of the Labour Code as proposed does not contemplate the removal of that request but seeks to modify the time in which the Ministry of Finance is able to reply and, should it fail to do so, the resulting administrative silence shall be construed as positive with a view to expediting the procedure for the registration of collective agreements of autonomous official institutions. As regards the amendment of section 119 of the Civil Service Act, the Committee notes the Government’s indication that it will provide information in due course on any further developments in this respect. The Committee recalls that the requirement of ministerial approval to enable a collective agreement to enter into force is not fully consistent with the principles of voluntary bargaining laid down in the Convention: however, there is nothing to prevent the budgetary authority, prior to the conclusion of the collective agreement, from informing the employer of the situation and of the budget that is available. The Committee again requests the Government to take the necessary measures to amend section 287 of the Labour Code and section 119 of the Civil Service Act so as to abolish the requirement for prior ministerial approval in order for collective agreements to take effect. The Committee requests the Government to provide information in its next report on any measures taken in this regard.

Article 6. Exclusion of certain public employees from the guarantees of the Convention. In its previous comments the Committee noted that, under section 4(1) of the Civil Service Act, as amended by Legislative Decree No. 78 of August 2006, numerous public sector workers are excluded from the administrative career and hence from the guarantees of the Convention (collectors, treasurers, cashiers, administrators, warehouse security staff, warehouse personnel and auditors in any public institution department) and requested the Government to take the necessary steps to ensure that public servants not engaged in the administration of the State enjoy the guarantees provided for in the Convention. The Committee notes the Government’s indication that section 4(1) of the Civil Service Act is not being reformed and that it will provide information on any changes in this respect. The Committee recalls that the only possible exceptions to the guarantees laid down in the Convention refer to the armed forces, the police and public servants engaged in the administration of the State (Articles 5 and 6). The Committee requests the Government once again to take the necessary steps to amend section 4(1) of the Civil Service Act in order that public servants not working in the administration of the State enjoy the guarantees provided by the Convention. The Committee requests the Government to provide information in its next report on any measures taken.

Right to collective bargaining of teachers. In its previous comments the Committee noted that section 2 of the Civil Service Act provides that, because of the nature of their duties, members of the teaching profession are governed by a special act – which, in this specific case, does not contain any provisions on collective bargaining –, without prejudice to the social rights laid down in the Civil Service Act, which shall apply to them. The Committee also noted the Government’s confirmation that, in addition to the right to association, teachers also enjoy the right to collective bargaining and requested the Government to indicate the date of the most recent collective agreements concluded with teachers in the public sector. The Committee notes the Government’s statement that to date no collective labour agreement has been concluded with teachers in the public sector. The Committee, recalling that all teachers, including those in the public sector, are covered by the scope of the Convention’s provisions, requests the Government to promote the right to collective bargaining of teachers in the public sector and to provide information on any further developments in this respect.