Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

1. 485. The Trade Union Association of Nursing Professionals, Technicians and Aides (SIGPTEES) lodged its complaint in a communication dated 20 May 2010.
2. 486. The Government sent its observations in a communication dated 5 October 2010.
3. 487. 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. Allegations of the complainant organization

1. 488. In its communication dated 20 May 2010, the SIGPTEES indicates that it lodges a formal complaint against the Government of El Salvador owing to the limits placed on its right to draw up its statutes.
2. 489. The complainant organization indicates that, as announced in the Official Journal, it was granted legal personality on 25 April 2008 as a trade union. It adds that it held an extraordinary general assembly on 27 March 2010 with a view to amending its statutes and that the quorum voted unanimously to amend article 2 as follows: “Membership of the Trade Union Association of Nursing Professionals, Technicians and Aides of El Salvador is open to persons with diplomas in nursing, nursing technologists, professional nurses, nursing technicians and nurses’ aides who are duly registered with the Nursing Profession Board of Supervisors of the Higher Health Council and who provide services in any part of the territory of the Republic of El Salvador, whether in public, private or official autonomous institutions”.
3. 490. The complainant organization indicates that, in a written communication to the Ministry of Labour and Social Insurance dated 5 March 2010, it requested that the abovementioned article be amended in the statutes to allow it to affiliate both public and private sector workers.
4. 491. On 25 March 2010, the representatives of the complainant organization, together with its secretary for disputes and a lawyer from the Human Rights Institute of José Simeón Cañas Central American University, acting as an observer, met with the director of the collective labour rights section of the Ministry of Labour. The complainant organization indicates that the director informed it on that occasion that the statutes could not be amended as proposed because the same trade union could not affiliate members from both the private and the public sectors.
5. 492. On 8 April 2010, the same representatives and the persons accompanying them met with the legal adviser of the Ministry of Labour and Social Insurance. On that occasion, the complainant organization received confirmation that the statutes could not be amended as requested because section 76 of the Civil Service Law stipulates that: “for the purposes of the law, ‘trade union’ shall refer to any permanent association of public servants working for the same public administration institution”, meaning that it was not possible to mix public sector and private sector workers in the trade union association.
6. 493. The complainant organization concludes by indicating that, to date, the matter of the denial or approval of the amendment to article 2 of the statutes has not been formally resolved, as it has received no written communication on the subject. The Ministry legal adviser promised to provide a denial within 15 days, but the only indication received is that the matter continues to be investigated with a view to providing the right response.

B. The Government’s response

1. 494. In its communication dated 5 October 2010, the Government confirms that, in resolution No. 08/2008 of 28 March 2008, the Ministry of Labour and Social Insurance granted legal personality to the SIGPTEES, which was established as a trade union under the provisions of section 204 of the Labour Code.
2. 495. The Government indicates that the request presented on 3 March 2010 to the Ministry of Labour and Social Insurance to amend article 2 of the statutes is inadmissible because trade unions cannot affiliate workers from both the private and the public sectors, given that section 76 of the Civil Service Law stipulates that: “for the purposes of the law, ‘trade union’ shall refer to any permanent association of at least 35 public servants working for the same public administration institution, for the study, improvement and protection of their respective common economic and social interests”.
3. 496. The Government emphasizes that there is a clear legal impediment to the constitution of mixed trade unions, or trade unions made up of public and private sector workers, given that section 76 mentioned above clearly stipulates that trade unions of public servants must be composed of employees working “for the same public administration institution”. The Government adds that, in El Salvador, the exercise of labour rights is the remit of various institutions: in the case of private sector workers, the Ministry of Labour and Social Insurance; in that of public sector employees, the Civil Service Tribunal. This is because there are substantial differences between public and private sector trade unions, for example with regard to: (i) the competent authority in the event of a collective labour dispute, which is the Civil Service Tribunal for the public sector, by virtue of
   • sections 120–123 of the Civil Service Law, and the Ministry of Labour and Social Insurance for the private sector, by virtue of sections 467–470 of the Labour Code; (ii) article 221, paragraph 1, of the Constitution, which prohibits the right to strike in the public sector (“Strikes by public and municipal workers are prohibited, as is collective abandonment of duty …”); and (iii) collective work agreements, which in the public sector are limited in ways that do not apply to the private sector: unlike private sector agreements, public sector collective agreements involve the Finance Ministry. In addition, article 246 of the Constitution establishes that “the public interest shall take precedence over private interests”, which is why there are limits to the exercise of freedom of association in the public sector.
4. 497. After referring to the principles of the supervisory bodies in respect of the application of Convention No. 87 to both public and private sector workers, the Government indicates that: (1) it is firmly committed to upholding the principles of Convention No. 87 and has made efforts to that end, even though the existing legal order does not allow it to comply with certain of the Convention’s provisions, owing to the impossibility to constitute trade unions of civil servants working in different public institutions; and (2) work is moving forward on an amendment to the Civil Service Law for submission to the legislative body. In addition, since article 47 of the Constitution was amended in 2009, it has been recognized that civil servants, public employees and municipal employees have the right to associate freely in the defence of their respective interests, forming professional associations or trade unions, it being nevertheless prohibited for such trade unions to affiliate private sector workers for the purposes of making up mixed trade unions.
5. 498. The Government asserts that, without breaking with the country’s institutional system, the approach adopted by the Ministry of Labour and Social Insurance is in compliance with that prescribed by Convention No. 87. Likewise, it can be concluded that as concerns the SIGPTEES, no action has been taken that infringes on the freedom of association of the public and private sectors, nor has the right to form professional associations enshrined in Article 11 of Convention No. 87 has been violated.
6. 499. The Government nonetheless goes on to say that, while it is true that article 47, paragraph 1, of the Constitution recognizes the right of “private employers and workers, without distinction of nationality, sex, race, creed or political beliefs and no matter what their activity or the nature of their work, to associate freely for the defence of their respective interests by establishing professional associations and trade unions”, and stipulates that the “same right shall be enjoyed by workers employed by autonomous official institutions, public servants and employees and municipal employees”, that right must be exercised within the legal provisions governing it, namely section 76 of the Public Service Law, and that it is not legally possible to apply two legal texts simultaneously to one professional association (the Civil Service Law and the Labour Code).

C. The Committee’s conclusions

1. 500. The Committee observes that the complainant organization in the present case alleges limits to the right to draw up its statutes and to affiliate nursing staff from both the private and the public sectors.
2. 501. The Committee takes note that, according to the complainant organization: (i) on 27 March 2010, an extraordinary general assembly convened to amend the statutes and that the quorum voted unanimously to amend article 2; (ii) in a written communication to the Ministry of Labour and Social Insurance dated 5 March 2010, the trade union requested that the abovementioned article be amended in the statues to allow it to affiliate workers from both the public and the private sectors; (iii) on two occasions, the Ministry of Labour informed the trade union that the amendments to the statutes could not be given effect because one trade union could not affiliate both public and private workers; and (iv) to date, the matter of the denial or approval of the amendment to article 2 of the statutes has not been formally resolved, as there has been no written communication on the subject.
3. 502. The Committee takes note of the Government’s statements, according to which: (i) the request presented on 3 March 2010 to the Ministry of Labour and Social Insurance to amend article 2 of the statutes is inadmissible because, under the provisions of section 76 of the Civil Service Law, trade unions cannot affiliate workers from both the private and the public sectors; (ii) there is a clear legal impediment to the establishment of mixed trade unions; (iii) this is because there are substantial differences between trade unions from the private sector and trade unions from the public sector; (iv) work is being done on a proposed reform of the Civil Service Law for submission to the legislative body; (v) since article 47 of the Constitution was amended in 2009, it has been recognized that civil servants, public employees and municipal employees have the right to associate freely in the defence of their respective interests, forming professional associations or trade unions, it being nevertheless prohibited for such trade unions to affiliate private sector workers for the purposes of making up mixed trade unions; (vi) while it is true that article 47, paragraph 1 of the Constitution recognizes the right of private employers and workers to associate freely in the defence of their respective interests, forming professional associations or trade unions, there exists a clear legal impediment to the establishment of mixed trade unions, meaning trade unions made up of public and private sector workers, so long as section 76 of the Civil Service Law clearly stipulates that trade unions of public servants must be made up of employees working “for the same public administration institution”; and (vii) without breaking with the country’s institutional system, the approach of the Ministry of Labour and Social Insurance is in compliance with that prescribed in Convention No. 87.
4. 503. The Committee concludes that the legislation as it currently stands does not allow a trade union to affiliate both public sector and private sector workers. Likewise, it can be deduced from the Government’s response that there are technical problems, given that the exercise of labour rights (constitution of trade unions, system for collective disputes and collective work agreements, right to strike, which is prohibited in the public sector, etc.) is regulated by different laws (the Labour Code and the Civil Service Law) and by different institutions: in the case of private workers, the Ministry of Labour and Social Insurance, and in the case of public employees, the Civil Service Court. In the Committee’s view, the demand of the SIGPTEES to be permitted to affiliate nursing professionals, technicians and aides from both the private and the public sectors is perfectly legitimate, and it recalls that, with regard to restrictions limiting all public servants to membership of unions confined to that category of workers, it is acceptable for first-level organizations of public servants to be limited to that category of workers on condition that their organizations are not also restricted to employees of any particular ministry, department or service, and that the first-level organizations may freely join the federations and confederations of their own choosing [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, para. 337].
5. 504. The Committee notes with interest that the Government states that it firmly intends to comply with the principles of Convention No. 87 in view of the legal impossibility to constitute mixed trade unions of private and public sector workers, and that it is working on a draft reform of the Civil Service Law for submission to the legislative body. The Committee asks the Government, in consultation with the most representative workers’ and employers’ organizations, to accelerate the procedure for amending the legislation, ensuring that it fully guarantees the respect of the freedom of association principles for civil servants, and expresses the firm hope that in the very near future the SIGPTEES will be able to modify its statutes in order to represent nursing professionals, technicians and aides from not just the private but also the public sector. The Committee asks the Government to keep it informed of the status of that reform and, in the meantime, to allow the trade union in practice to represent nursing professionals, technicians and aides from the private and the public sectors.