Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 372, Juin 2014

1. 246. The complaint is contained in a communication from the Trade Union of Workers in the Tourism, Hotel and Allied Industries (STITHS) dated 16 November 2012.
2. 247. At its March 2014 meeting [see 371st Report, para. 6], since there had been no reply from the Government, despite the time that had elapsed since the presentation of the complaint, the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th Session, it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 248. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 249. In its communication of 16 November 2012, the STITHS alleges that, in March 2012, it signed a collective agreement with the Salvadorian Tourism Institute (ISTU), which included a new version of the clause “financial compensation for the voluntary retirement of ISTU workers”, which considers two ways of paying the abovementioned financial compensation: (a) with Government funds; or (b) with its own resources, as, in accordance with the law governing the ISTU, that institute enjoys administrative, budgetary and financial autonomy. The text of the collective agreement was submitted to the Ministry of Tourism and the Ministry of Finance for approval on 12 April 2012, in accordance with section 287 of the Labour Code.
2. 250. The complainant organization adds that, on 5 June 2012, the President of the ISTU Board of Directors, anticipating the Ministry of Finance’s unfavourable opinion in respect of the abovementioned clause of the collective agreement, informed the Deputy Finance Minister of the decision on point 7, taken during ordinary meeting No. 12/2012 of the ISTU Executive Committee on 27 June 2012, at which the members of the Executive Committee agreed that, in the event of the Ministry of Finance issuing an unfavourable opinion in respect of the payment of financial compensation for voluntary retirement for the tax years after 2012, the ISTU would use its own funds to cover the benefit in question, thereby allaying any concerns over the availability of adequate resources.
3. 251. Nevertheless, the complainant organization states that, on 17 July 2012, the Finance Minister issued the following opinion: “… A legal and financial examination of the collective labour agreement in question was carried out in accordance with the abovementioned legal provision and has shown that the institution in question possesses the financial and budgetary resources to cover the cost entailed by the agreement signed between the Salvadorian Tourism Institute and the Trade Union of Workers in the Tourism, Hotel and Allied Industries; this fact notwithstanding and in accordance with the guidelines issued by the Office of the President of the Republic under Executive Decree No. 78 of 11 April 2012, which sets out the savings and austerity policy for the public sector in 2012, published in Official Journal No. 66, volume 395, on 12 April 2012; this ministerial office issues an unfavourable opinion …”.
4. 252. In this regard, the complainant organization states that when the Executive Committee of the ISTU and the STITHS negotiated the collective agreement on 16 and 21 March 2012, and, prior to signing it on 12 April 2012, Executive Decree No. 78 of 11 April 2012, which sets out the savings and austerity policy for the public sector, published in Official Journal No. 66, volume 395, on 12 April 2012, was not yet valid, as it only entered into force eight days after its publication in the Official Journal. In conclusion, it appears that the Executive Decree was applied retroactively to the detriment of the workers of ISTU.
5. 253. The complainant organization states that, after the Ministry of Finance had issued its unfavourable opinion, the Director of the ISTU sent a memorandum to the Deputy Finance Minister on 27 August 2012, informing him that the ISTU Executive Committee had been informed of the unfavourable opinion issued by the Ministry of Finance, whereby it did not approve the collective labour agreement and that, in view of this fact, a decision was taken on point 7 at ordinary meeting No. 15/2012 of the ISTU Executive Committee on 10 August 2012, which stipulated that the collective labour agreement would enter into force as of 1 January 2013.
6. 254. The complainant organization highlights that its right to bargain collectively has been infringed, despite it having presented two alternatives to avoid violating the guidelines issued under the savings and austerity policy for the public sector set out in Executive Decree No. 78. Indeed, the ISTU and the STITHS agreed that the ISTU’s own funds would be used to pay the abovementioned benefit and that the abovementioned collective agreement would enter into force on 1 January 2013 (that is, when the austerity policy came to an end).
7. 255. The complainant organization recalls that, in a previous case relating to El Salvador [see 353rd Report, March 2009, Case No. 2615] concerning the violation of a collective agreement clause on regrading and wage adjustment, the Committee requested the Government to “guarantee respect for the principles referred to in the conclusions as regards observance of collective agreements and consultation with trade unions on matters affecting the workers’ interests …” and to “take steps to amend section 287 of the Labour Code so that collective agreements that have been concluded and signed by the parties in an autonomous official institution do not have to be submitted for approval by the Ministry of Tourism, which itself has to seek the opinion of the Ministry of Finance; in this regard, the Committee regrets the fact that the collective agreement negotiated by the complainant trade union and the ISTU could not be applied for that reason”. The Committee also drew the legislative aspects of the case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, as section 278 of the Labour Code provides that “to be valid, a collective agreement signed with an autonomous official institution shall first be approved by the ministry concerned, after the Ministry of Finance has given its opinion. The official autonomous institution which has concluded the collective agreement shall forward it to the Court of Auditors of the Republic” [see 353rd Report, Case No. 2615 (El Salvador), para. 872].

B. The Committee’s conclusions

1. 256. The Committee regrets that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations even though it has been requested several times, including through an urgent appeal in March 2014. The Committee requests the Government to be more cooperative in the future.
2. 257. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 258. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments, in turn, will recognize the importance of presenting, for objective examination, detailed replies concerning allegations made against them [see First Report, para. 31].
4. 259. The Committee notes that, in the present case, the complainant organization alleges that, despite having negotiated and signed a collective agreement in March–April 2012, the Ministry of Finance subsequently issued an unfavourable opinion in respect of the clause “financial compensation for the voluntary retirement of the ISTU workers”, even though it had been confirmed that the institution in question possessed the requisite financial and budgetary resources to cover the cost entailed by the collective agreement. The Committee notes that the opinion issued by the Ministry of Finance, contained in an official memorandum, is based on the guidelines issued under the savings and austerity policy for the public sector in 2012 (set out in Executive Decree No. 78).
5. 260. Since the Government has not replied, the Committee wishes to highlight that the examination of collective agreement clauses with a financial impact by the financial authorities should take place during the collective bargaining process and not, as has occurred in this, and in other cases brought before the Committee, after the collective agreement has been signed by the parties, as this is incompatible with the principle of free and voluntary collective bargaining and the principle according to which “agreements should be binding on the parties” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 939]. The Committee observes that the issues raised in this complaint are similar to those raised in the framework of Case No. 2986 and requests the Government to guarantee respect for these principles in the future and urges it once again to take steps to amend section 287 of the Labour Code so that collective agreements that have been concluded and signed by the parties in an autonomous official institution, such as the ISTU, do not have to be submitted for approval by the Ministry of Tourism, which itself has to seek the opinion of the Ministry of Finance.
6. 261. In this regard, the Committee regrets that the collective agreement negotiated by the complainant organization and the ISTU has not been approved, particularly in view of the parties’ willingness to apply the clause with a financial impact from 2013 (when the Government’s austerity policy comes to an end), which the Ministry of Finance rejected. The Committee requests the Government to take steps to bring the parties and the authorities in question together with a view to overcoming this situation, and to keep it informed of any developments in that regard.
7. 262. Lastly, the Committee refers the legislative aspect of this case to the Committee of Experts on the Application of Conventions and Recommendations.