Rapport définitif - Rapport No. 386, Juin 2018

1. 260. The complaint is contained in a communication of 8 November 2016 from the Administrative Employees’ Union of the National Civil Police of El Salvador (SEAD PNC) and the Federation of Public Sector Workers’ Unions (FESITRASEP).
2. 261. The Government sent its observations in a communication of 19 April 2018.
3. 262. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 263. The complainant organizations report that on three occasions (in 2010, 2014 and 2015) the SEAD PNC carried out the procedures vis-à-vis the Ministry of Labour to apply for legal personality, receiving a negative response on all three occasions. In the decisions rejecting the application to acquire legal personality, which were forwarded by the complainants, the Ministry indicates that: (i) article 47 of the National Constitution provides that members of the National Civil Police do not have the right of association (the Government emphasizes that this restriction also appears in the Civil Service Act); (ii) this is in accordance with Article 9 of Convention No. 87; and (iii) the exclusion in the Constitution is applicable to both judicial and administrative personnel: the Constitution does not make distinctions among police staff on the basis of competencies or positions held; the police function – the object of which is to ensure public safety – comprises duties assigned to the whole institution of the National Civil Police, without distinguishing between posts or competencies of staff in its service.
2. 264. The complainants disagree with the Government’s position. They consider that the reform made to article 47 of the Constitution in 2009 was intended to place restrictions on the handling of confidential police information, and emphasize that the legislation distinguishes between police personnel and administrative personnel. In particular, section 2 of the Police Careers Act provides that this Act only applies to the police personnel of the National Civil Police and that the administrative, technical and service personnel of the National Civil Police will be regulated by other legislation – which at present does not exist. The complainants also indicate that attempts have been made for years to apply the Civil Service Act to administrative personnel, even though section 4 of this Act provides that the members of the armed forces and of the National Civil Police are not part of the administrative career service. The complainants report that the Government nevertheless makes use of these distinctions to exclude administrative personnel from all the benefits and allowances granted to police personnel – but when they wish to form a union to defend their interests they are not allowed to do so, being recognized under those circumstances solely as members of the National Civil Police. This gives rise to a situation of legal uncertainty, vulnerability and inequality in terms of rights and benefits.

B. The Government’s reply

1. 265. In its communication of 18 April 2018, the Government makes observations in response to the complainants’ allegations. With reference to the arguments put forward in the Ministry of Labour’s decisions to reject the application by SEAD PNC to acquire legal personality and to the information provided by the Director-General of the National Civil Police, the Government indicates that: (i) the National Civil Police is a public-law institution, under the authority of the Ministry of Justice and Security, the purpose of which is to “protect and guarantee the free exercise of the rights and freedoms of individuals, to prevent and combat all kinds of crimes and to cooperate in the investigation of crimes; maintain internal peace, tranquillity, order and security in both urban and rural areas, with strict respect for human rights”; (ii) the prohibition contained in article 47(2) of the Constitution – which establishes that members of the National Civil Police shall not have the right of association – does not distinguish between staff on the basis of their competencies or posts held, in other words it does not distinguish between administrative and police staff; (iii) in the same manner, section 31(8) of the Basic Act of the National Civil Police prohibits all members of the police force from “organizing in trade unions or other groups that pursue the same ends, or participating in strikes, suspensions or stoppages of work”; (iv) the nature of policing is that the role is performed not by some staff but by the institution as a whole, being a joint and continuous task and a service that cannot be suspended for any reason; the tasks performed by police and administrative staff are not directly or indirectly separated, since the actions of police staff are directly linked to the work performed by administrative staff; and (v) in view of the foregoing, the exclusion in question, which affects all National Civil Police staff, is fully in accordance with Convention No. 87.

C. The Committee’s conclusions

1. 266. The Committee observes that the complaint is concerned with allegations that the application by a new trade union of administrative staff in the National Civil Police to acquire legal personality was rejected and that the complainants emphasize that the legislation distinguishes between police personnel and administrative personnel within the police entity.
2. 267. In this regard, the Committee recalls that Article 9(1) of Convention No. 87 provides as follows: “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.”
3. 268. The Committee observes that, despite the fact that the legislation distinguishes between administrative and police personnel, in particular with respect to their professional careers, the administrative decisions rejecting the application from SEAD PNC to acquire legal personality, as well as the Government’s observations in relation to the complaint, highlight that: (i) the exclusion of the right to organize in the Constitution and in national legislation makes no distinction between categories of staff in the National Civil Police; and (ii) that the police function comprises duties assigned to the whole institution of the National Civil Police, without distinguishing between posts and competencies of staff in its service.
4. 269. While recalling that Article 9 of the Convention provides only for exceptions to the general principle, that the interpretation of these possible categories of exclusion (police and armed forces) should be restrictive and that in case of doubt, workers should be classified as civilians, the Committee takes due note of the information provided by the Government and observes that the complainants do not deny that administrative personnel are an integral part of the National Civil Police and they do not allege that the duties and tasks of such personnel are different in nature from those of police personnel; furthermore, they do not present any supporting evidence in this regard. In these circumstances, the Committee will not pursue its examination of the case.