Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 353, Mars 2009

1. 873. The complaint is set out in a communication dated 5 March 2008 presented by the trade union organizations affiliated to the Permanent Bureau for Labour Justice (MPJL), an umbrella organization for a number of different confederations, federations and trade unions in El Salvador which support the complaint. The World Federation of Trade Unions (Americas Region) supported the complaint in a communication dated 10 March 2008. The MPJL organizations presented new allegations in a communication dated 10 June 2008. The Government sent its observations in a communication dated 18 June 2008.
2. 874. El Salvador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant organizations’ allegations

1. 875. In its communication dated 5 March 2008, the trade union organizations affiliated to the MPJL allege that on 1 November 2007, the Ministry of Labour and Social Security (MINTRAB) in an official decision refused to grant legal personality to the SINEJUS. The decision in question states that “the application for legal personality made by the new union called the Union of Salvadorian Judiciary Employees (SINEJUS) is rejected”, which violates the right of judiciary employees to organize.
2. 876. According to the complainant organizations, on 3 September 2007, three judiciary employees agreed to call a constituent meeting for the purpose of establishing the SINEJUS, inviting all judiciary employees wishing to do so to attend; this was after El Salvador had ratified Convention No. 87. The date for the meeting was set for 6 September 2007, in room B-4 on the fourth floor of union premises in San Salvador, and at the general meeting the union was formally established, a provisional executive was elected and the union’s statutes were adopted.
3. 877. On 7 September 2007, one week after the constituent meeting, MINTRAB was asked to grant legal personality and thus formal legal recognition to the union as having been legally constituted, and the application was accompanied by the documents required by law, namely, the official announcement of the constituent meeting, the notarial act confirming the constitution of the union, the list of constituent members, and two copies of the approved statutes. MINTRAB received the application, which remained pending and subject to final approval.
4. 878. The complainant organizations add that as the request by the SINEJUS was being examined by MINTRAB, the Constitutional Affairs Chamber of the Supreme Court on 16 October 2007 ruled that the expression “without distinction whatsoever” in Article 2 of Convention No. 87 (in connection with the right of workers to establish organizations) is unconstitutional, a ruling announced publicly on 30 October 2007.
5. 879. Two days after the public announcement, MINTRAB decided not to grant legal personality to the SINEJUS on the grounds that public service employees do not have the right to organize, according to the ruling of four judges of the Constitutional Affairs Chamber. According to point III of the ministerial decision, based on section 10 of the Constitutional Procedures Act, “the definitive ruling shall not be subject to appeal and shall be in general terms binding on state bodies, officials and authorities, and all persons natural or legal”.
6. 880. The SINEJUS applied for legal personality 40 days before the ruling of unconstitutionality referred to previously. A ruling of unconstitutionality has effect ex nunc (“henceforth”), that is to say, concerns future acts only, in order to maintain the principle of legal certainty that applies in Salvadorian law.
7. 881. The denial of legal personality to the SINEJUS not only violates the right to unionize but also exposes the absence of good faith on the part of the State in its failure to meet its international obligations. This attitude defies the principle of international law that pacta sunt servanda, that is to say, all international agreements must be complied with and domestic law may not be invoked to justify non-compliance with a treaty; it is a breach of international law and an affront to the good faith on which relations between States must be based as regards the full and effective observance of the international instruments which they adopt.
8. 882. The complainant organizations recall that the ILO’s Freedom of Association Committee has on a number of occasions recognized that the denial of the right of public employees to organize is a serious violation of freedom of association.
9. 883. El Salvador, according to the complainant organizations, has shown manifest bad faith in respect of compliance with its international obligations, despite being urged by the ILO for a number of years to make the necessary amendments to its legislation.
10. 884. It should be recalled that in 2005, the Salvadorian Government gave an undertaking to the countries of the European Union (EU) to ratify this Convention in the context of negotiations to extend tariff preferences in trade between El Salvador and the EU. To that end, on 12 April 2005, the President set up the National Commission for Labour Modernization (CONAMOL), whose mandate includes examining Conventions Nos 87 and 98 with a view to indicating ways of facilitating ratification.
11. 885. Subsequently, on 25 October 2005, CONAMOL recommended reforming the Constitution of the Republic and announced that in April 2006, it would present a number of proposals to the Legislative Assembly with a view to facilitating ratification of both Conventions.
12. 886. In April, 2006, however, the Executive did not present any proposal for reforming the Constitution, nor indeed were any statements made on this by CONAMOL or other competent officials, with the exception of the Minister of Economic Affairs who, during the penultimate working day of the previous session of the legislature, attempted to shift responsibility for financial losses that might be incurred by some companies from the Executive to the legislative authority. In El Salvador, constitutional amendments require the agreement of both chambers of the legislature, one of which approves and the other formally ratifies any amendments. The assembly changes every three years.
13. 887. Under these circumstances, according to the complainant organizations, the Government deliberately delayed the constitutional reform process. On 24 August 2006, the Conventions were ratified as a result of pressure mainly from foreign companies operating in the country. One year after this, however, came the Supreme Court ruling that the phrase “without distinction whatsoever” in Article 2 of Convention No. 87 is unconstitutional.
14. 888. In its communication of 10 June 2008, the complainant organizations reiterate their complaint and communicate the text of the Supreme Court ruling in question.
15. 889. The complainant organizations also supply a copy of the report by the Office of the Human Rights Ombudsman severely critical of the Supreme Court’s interpretation in the ruling in question. In their view, that interpretation was outdated, and they point out that one of the judges dissented.

B. The Government’s reply

1. 890. In its communication of 18 June 2008, the Government states with regard to the allegation concerning the denial of legal personality to the SINEJUS that the General Labour Directorate, in a decision dated 1 November 2007, rejected the application for legal personality on the following grounds:
   • (a) The Constitutional Affairs Chamber of the Supreme Court ruled at 10.50 a.m. on 16 October 2007 that “it is hereby decided in general and binding terms that the expression ‘without distinction whatsoever’ in Article 2 of the ILO’s Freedom of Association and Protection of the Right to Organise Convention is unconstitutional because it contravenes article 47(1) of the Constitution, inasmuch as the wording of the Convention in question extends the right of freedom of association to public employees who are not covered by the constitutional definition of those who enjoy that right”.
   • (b) Section 10 of the Constitutional Procedures Act stipulates that “the definitive ruling shall not be subject to appeal and shall be in general terms binding on state bodies, officials and authorities, and all persons natural or legal”.
2. 891. The Government adds that the MINTRAB is obliged to respect the Supreme Court ruling, which prevents it from granting legal personality to organizations of public employees. Article 235 of the Constitution states that “All civilian or military officials shall before taking up their duties swear an oath of loyalty to the Republic and undertake to abide by the Constitution, that text taking precedence over any laws, decrees, orders or official decisions that are inconsistent with its provisions; and shall undertake to discharge faithfully the duties of their office, assuming liability for any contravention in accordance with the laws”; this provision must be read in conjunction with section 10 of the Constitutional Procedure Act referred to above.
3. 892. Notwithstanding the above, the ruling of the Constitutional Affairs Chamber of the Supreme Court may be superseded in the event of ratification of the proposed amendment to article 47 of the Constitution recognizing freedom of association for public servants. It should be noted that the outgoing Legislative Assembly in 2006 approved the amendment, and it is expected that the incoming Legislative Assembly in 2009 will formally ratify it in accordance with the established legal procedure.
4. 893. At the same time, the Government states that according to the complainant trade unions, the application for legal personality was made 40 days before the ruling of unconstitutionality, and they are therefore exempted from the effects of that ruling, which can in no case be retroactive. In the Government’s view, there is no legal basis here for claiming an “acquired right”. The MINTRAB has effectively done no more than apply the ruling of the Constitutional Affairs Chamber in accordance with article 235 of the Constitution and section 10 of the Constitutional Procedures Act.

C. The Committee’s conclusions

1. 894. The Committee notes that in the present case, the trade union organizations allege refusal to grant legal personality to the SINEJUS by a decision of the Ministry of Labour, despite the fact that the legal requirements had been met.
2. 895. The Committee notes the Government’s statements to the effect that the General Labour Directorate in a decision dated 1 November 2007 rejected the application of the SINEJUS for legal personality on the grounds that: (1) the Constitutional Affairs Chamber of the Supreme Court on 16 October 2007 ruled that under the terms of the Constitution, public servants are not covered by the definition of those who enjoy the right of freedom of association, and declared unconstitutional the expression “without distinction whatsoever” in Article 2 of ILO Convention No. 87 (“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorization”); (2) according to the Constitution and the Constitutional Procedures Act, the MINTRAB is bound to respect the Supreme Court ruling and is prevented from granting legal personality to an organization of public employees; and (3) the outgoing Legislative Assembly in 2006 approved the reform of article 47 of the Constitution recognizing freedom of association for public employees; it is expected that the incoming Legislative Assembly of 2009 will formally ratify it and implement the constitutional reform in question, in accordance with the established legal procedure.
3. 896. While taking note of the Government’s arguments, the Committee recalls that the principles of freedom of association allow exclusion from the right to organize – a fundamental right – only in the case of the armed forces and police. Consequently, all other workers, including judiciary employees, must be allowed freely to establish representative organizations of their own choosing. Under these circumstances, the Committee considers that refusal to grant legal personality to the SINEJUS is a violation of freedom of association, particularly in view of the fact that El Salvador has ratified Convention No. 87.
4. 897. The Committee expects that the current Legislative Assembly will shortly ratify the reform to article 47 of the Constitution agreed by the previous Legislative Assembly, in order to allow the right to organize to all judiciary employees, and deeply regrets that the process has been delayed. The Committee requests the Government to keep it informed in this regard, and to take all the necessary steps to ensure that, in accordance with Convention No. 87, the constitutional reform may allow exceptions to the right to organize only in the case of the armed forces and police. The Committee expects that the SINEJUS will soon obtain legal personality, and that in the meantime it will be able to carry out its representation activities until the constitutional issues have been resolved.