2009 Annual Survey of violations of trade union rights - El Salvador
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - El Salvador, 11 June 2009, available at: http://www.refworld.org/docid/4c52caf032.html [accessed 1 September 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Capital: San Salvador
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
El Salvador ratified ILO Convention 87 in 2006, but it is still not applied in practice. Workers are still being dismissed because they try to form unions. The government and employers have continued to ignore workers' demands and protests. Municipal workers and their associations faced problems throughout the year, as did judicial employees.
Trade union rights in law
The Constitution and Labour Code recognise the right of private sector workers and employees of autonomous public agencies to form trade unions. All public sector workers not employed by autonomous agencies, such as public hospitals and the State-owned electricity company, do not have the right to join or form trade unions, and cannot engage in collective bargaining.
The 2006 reform of the Civil Service Law further increased the restrictions on organising in the public sector. The people excluded from the scope of the Convention, and thus from the right to organise, are not only senior civil servants, but also people with such diverse jobs as warehouse managers, treasurers, tax collectors, paymasters, etc. In addition, the law fails to include provisions relating to the other fundamental rights required for exercising freedom of association in the public sector, such as those relating to the forming of federations and confederations, trade union immunity, the honouring of collective agreements, the implementation of anti-discriminatory practices and non-interference by state officials in trade union affairs. The Constitution does, however, allow State employees to organise themselves in associations in order to defend their interests.
Restrictions on freedom of association: To be legally registered, trade unions must follow complex procedures, including the requirement to obtain prior authorisation from the government. What is more, if legal registration of a union is denied, any attempts to promote organising of the union are banned for the next six months. A union must have a minimum of 35 members in the workplace, and members of a union's leadership bodies must be Salvadorian by birth. Trade unions cannot take part in political activities.
Restrictions on the right to collective bargaining: The state restricts the negotiation of collective agreements by stipulating in the Labour Code that in order to engage in collective bargaining for the first time, a union's membership must represent at least 51 percent of the workforce in the company or workplace.
Strike restrictions: There are restrictions on the right to strike, including the requirement that 51 per cent of workers in the enterprise, whether or not they are members of a union, must support a strike. A strike can only be called if it concerns a change or renewal of a collective agreement or the defence of the workers' professional interests. Unions must wait four days after receiving the approval of the Ministry of Labour before beginning a strike, and do not have the right to appeal against any legal ruling declaring a strike illegal. According to the Ministry of Labour, all strikes in El Salvador have been illegal.
Inadequate protection against unfair dismissal: The Labour Code does not provide for the reinstatement of dismissed workers, although that right does exist by virtue of the San Salvador Protocol to the American Convention on Human Rights signed by El Salvador. Some time ago, an ILO recommendation stated that the reinstatement of dismissed workers was a necessary component of protection against unfair dismissal.
Trade union immunity limited: Trade union immunity is only granted to the 35 founders of a union, so all other members are excluded. What is more, the protection ends the moment the official notification of the acceptance or rejection of a request for legal registration is received, thus leaving all the workers who were entitled to form a union totally unprotected from dismissal thereafter.
Trade union rights in practice and violations in 2008
Background: The beginning of the electoral campaign, over a year in advance, exacerbated existing polarisation, pushing workers' rights into the background. Although elections are not due until 2009, the major political parties began campaigning at the end of 2007, affecting the running of the country.
Flexible employment practices are working against freedom of association: Employment practices such as subcontracting workers via third companies are also becoming a hindrance to organising and collective bargaining. In such cases, the employers' responsibilities are diluted and totally unclear, since the company and management that workers have to deal with directly are not the legal employers. As a result, far from engaging in a collective bargaining process the company will never even recognise the union.
Trade unionists' right to work violated: Discriminatory "blacklists" are one of the tools used most frequently by employers against trade unions, in particular in the export processing zones. By denying jobs to people with some previous links to trade unions, companies are excluding virtually all trade unionists from these zones, thus making it harder to create new unions. The various firms are all involved in sending these lists to one another. What is more, despite receiving repeated complaints, the state institutions are doing nothing to tackle this problem.
Export processing zones (EPZs) supported in their anti-union policy: Although the right to collective bargaining is recognised in law, it is not applied in the EPZs, owing to the extreme anti-union discrimination practiced by employers and the government's abdication of its responsibility to defend the collective bargaining rights of workers in EPZs. Any attempt at organising is repressed, and the workers are threatened with dismissal if they attempt to form or join a union or else with the closure of the company, which would leave everyone jobless.
Problems continue for Calvo employees: Workers affiliated to the Fishing Industry and Related Activities General Workers' Union, SGTIPAC, continued to face violations of their collective agreement and freedom of association. In February the union appealed to several Spanish and international bodies to demand the respect of their rights, an investigation of rights violations at the factory and compensation. The employer preferred to negotiate with the parallel union that it had organised in the company.
Anti-union dismissals: Over the course of the year 21 courts of justice employees, all members of the National Association of Judicial Employees of El Salvador (ANEJUS), were dismissed by the Zacatecoluca family courts and Ciudad Delgado magistrates. The union took action several times to demand the reinstatement of the dismissed workers and the removal from office of two women judges, accusing them of abusive treatment of their employees. The union was supported in its action by Public Services International (PSI). An agreement was finally reached allowing for the reinstatement of the workers and accepting the ANEJUS as a negotiating partner.
Freedom of association rights violated: In September, a group of workers began proceedings with the Ministry of Labour to form the Transportistas Ahuachapanecos S.A. de C.V. Public Transport Workers' Union, with the support of the Autonomous Workers' Centre of El Salvador (CATS). After submitting the documents, the company informed the union's members that they had been dismissed, and prevented them from entering the workplace. The CATS reported the case to the Trade Union Confederation of the Americas (TUCA).
Problems for municipal workers: Throughout the year municipal workers from the Municipal Workers Association (ATRAM) and the Salvadorian Association of Municipal Workers (ASRAM) led several protests at their workplaces over unfair dismissals and the lack of dialogue with municipal officials.