Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 360, Juin 2011

1. 620. The complaint is contained in a communication from the Trade Union of Municipal Workers and Employees of El Salvador (SITESMUES) dated 9 October 2010.
2. 621. The Government sent its observations in a communication dated 30 November 2010.
3. 622. 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’s allegations

1. 623. In its communication dated 9 October 2010, the SITESMUES states that, according to a notarized record issued on 27 February 2010, the trade union was established in the presence of 51 founding members, who are employees of the municipal authorities of San Salvador, Chalchuapa, Atiquizaya, Rosario de Mora and Apopa. The chairperson of the provisional executive committee submitted an application in due legal form on 8 March 2010 to the Ministry of Labour and Social Security for approval of the by-laws and the granting of legal personality to the trade union.
2. 624. The complainant organization states that the application was submitted in accordance with the applicable legislation, under section 73(1) of the Civil Service Act, which provides that “Public servants have the right to associate freely to defend their common economic and social interests, by establishing professional associations or trade unions, in keeping with the powers and restrictions laid down in the Constitution of the Republic, international conventions and this Act,” read together with section 76 of the Act, which defines a trade union as “a permanent association consisting of at least 35 public servants employed in the same institution of the public administration ...”. The complainant organization adds that the Ministry of Labour rejected the application made by SITESMUES by decision No. 28/2010 of 26 April 2010, on the grounds that the incipient trade union failed to comply with the requirements laid down in the abovementioned section 76 of the Civil Service Act, since, as indicated in the notarized record issued on 27 February 2010, it was established by workers who said they were employed by different municipal authorities, and thus did not meet the requirement laid down in that section to the effect that the public servants establishing a trade union must be employed in the same institution of the public administration, in this case the same municipal authority.
3. 625. The complainant organization states that the chairperson of the provisional executive committee, together with representatives of other trade unions of municipal employees, wrote to the Minister of Labour and Social Security requesting a meeting to discuss the issue of the refusal to grant it legal personality. No reply has been received to date.

B. The Government’s reply

1. 626. In its communication dated 30 November 2010, the Government states that the stance taken by the current administration of the Ministry of Labour and Social Security has been one of respect for the right to work and hence the human right of freedom of association of working men and women, as well as respect for the rule of law. However, in the case presented by SITESMUES, the Government points out that section 76 of the Civil Service Act provides that “for the purposes of this Act, ‘trade union’ means a permanent association consisting of at least 35 public servants employed in the same institution of the public administration, in order to study, improve and protect their common economic and social interests”; this requirement has not been met by the trade union in question, as its founding members belong to five different municipal authorities. Nonetheless, according to the Government, each of the municipal authorities can establish its own trade union.
2. 627. The Government points out that Article 8(1) of ILO Convention No. 87 provides that “In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.” In other words, the Convention offers the possibility of applying each country’s domestic legislation in regard to compliance with its requirements; thus, the Convention, being general in scope, does not go into specific aspects or situations, such as the minimum number required to establish a trade union, or the situation occurring in the present case, i.e. the possibility of public servants – municipal employees – of different municipal authorities being founding members of a single trade union.
3. 628. The Government adds that it has begun a process of revision and amendment of the Civil Service Act, which will include revision of Chapter XI on collective labour law (sections 73–119), and an analysis of section 76 mentioned above with a view to amending it so that it will not constitute an obstacle to the unionization of officials and employees working in different municipal authorities. The Government highlights the fact that, in order to help strengthen and ensure respect for the right of freedom of association, it held a consultation on 9 August 2010 with the International Labour Standards Department of the ILO (which is actively involved in the process of revision of the Civil Service Act) concerning the direct application of Convention No. 87 to the present case.
4. 629. The Government concludes by stating that, starting on 24 July 2009, the Ministry of Labour has granted legal personality to 55 public sector unions in line with its intention and commitment to make progress on promoting the rights to organize and collective bargaining, which are the fundamental pillars of justice and social peace.

C. The Committee’s conclusions

1. 630. The Committee observes that in this case the complainant organization alleges refusal by the authorities to grant legal personality to a trade union of workers employed in different municipal authorities.
2. 631. The Committee notes that, according to the complainant organization: (i) according to a notarized record issued on 27 February 2010, the trade union was established in the presence of 51 founding members, who are employees of the municipal authorities of San Salvador, Chalchuapa, Atiquizaya, Rosario de Mora and Apopa; (ii) in March 2010 an application was submitted for approval of the by-laws and the granting of legal personality to the trade union; (iii) the Ministry of Labour rejected the application made by the trade union, on the grounds that it failed to comply with the requirements laid down in section 76 of the Civil Service Act, since the incipient trade union was established by workers who said they were employed by different municipal authorities; and (iv) a letter was sent to the Minister of Labour and Social Security requesting a meeting, but no reply has been received to date.
3. 632. The Committee notes further the Government’s statement to the effect that, starting in July 2009, it has granted legal personality to 55 public sector unions. It also notes that, in the present case, the Government states that: (i) section 76 of the Civil Service Act provides that “for the purposes of this Act, ‘trade union’ means a permanent association consisting of at least 35 public servants employed in the same institution of the public administration, in order to study, improve and protect their common economic and social interests”; (ii) this requirement was not met by the trade union in question, as its founding members belong to five different municipal authorities; and (iii) it has begun a process of revision and amendment of the Civil Service Act, which will include revision of Chapter XI on collective labour law (sections 73–119), and an analysis of section 76 mentioned above with a view to amending it so that it will not constitute an obstacle to the unionization of officials and employees working in different municipal authorities.
4. 633. The Committee wishes to emphasize that the issue of conformity of section 76 of the Civil Service Act with ILO Convention No. 87 has been raised on a number of occasions in which the Government had already expressed its firm intention to comply with the principles of Convention No. 87 and said that work was under way on amendment of the Civil Service Act. The Committee stresses once again in this regard that, under Article 2 of Convention No. 87, workers have the right to establish organizations of their own choosing, including organizations grouping together workers from different workplaces and different cities. The Committee adds that, with regard to restrictions limiting all public servants to membership of unions confined to that category of workers, it is admissible 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 edition, 2006, paras 335 and 337]. The Committee again requests 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 respect of the principles of freedom of association for municipal employees, and expects that in the very near future the SITESMUES will be able to represent employees of several municipal authorities. The Committee requests the Government to keep it informed of the status of the amendment process and to accept rapidly the technical assistance of the ILO aimed at ensuring that the trade union in question may effectively represent employees of several municipalities.