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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ecuador (RATIFICATION: 1967)

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join the organizations of their own choosing. The Committee observes that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted on 19 May 2017, recognizes the right to organize of public servants, certain categories of staff are excluded from this right, in particular staff on occasional service contracts, staff subject to free appointment and removal, and public servants exercising duties on the basis of a statutory fixed-term appointment. The Committee recalls that, under the term of Articles 2 and 9 of the Convention, all workers, including public servants, with the sole possible exception of members of the police and the armed forces, have the right to establish and join organizations of their own choosing. The Committee therefore requests the Government to provide detailed information on the categories of public servants excluded from the right to organize and also on the grounds for such exclusion.

Right to strike of public servants. In its previous comments, after asking the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants, the Committee noted that the draft to the Basic Act reforming the legislation governing the public sector contained significant restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes. The Committee notes the Government’s indications regarding the provisions of the Basic Reform Act adopted on 19 May 2017 relating to the right to strike of public servants and the observations of the National Federation of Education Workers (UNE) and Public Services International in Ecuador (PSI-Ecuador) concerning various aspects of the aforementioned provisions. The Committee welcomes the fact that the new Act, giving effect to article 326.16 of the Constitution, as amended in December 2015, explicitly recognizes the right to strike of public servants. However, the Committee considers that, even though restrictions on the right to strike, in particular the restriction or even prohibition of the right to strike for public servants exercising authority in the name of the State, are acceptable to protect the basic interests of the community, the new Act has introduced excessive restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes, as recognized by Article 3 of the Convention. The Committee considers in particular that, as regards public servants who do not exercise authority in the name of the State: (i) the list of public services in which the right to strike is prohibited (health; environmental sanitation; education; justice system; fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; postal and telecommunication services) should be limited to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, with the possible establishment of minimum services for other public services of fundamental importance; (ii) the establishment of minimum services for public services of fundamental importance should be decided, if no agreement can be reached by the parties, by a joint or independent body which has the confidence of the parties, and not by the Ministry of Labour, without in any way calling into question the integrity of the latter or of its officials; and (iii) the referral of collective disputes to compulsory arbitration (which, according to the new Act, can be decided by the Ministry of Labour when the latter considers that the provision of the corresponding public service is endangered) should be limited to situations in which strike action may even be prohibited for public servants who exercise authority in the name of the State, to essential services in the strict sense of the term or an acute national crisis. Emphasizing once again that the necessary protection of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, the Committee requests the Government to take the necessary steps to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and to formulate their programmes. Taking due note of the technical assistance agreed upon with the Office, the Committee requests the Government to keep it informed of all progress made in this regard.

Determination of minimum services in the private sector in the event of disagreement between the parties. In its previous comments, the Committee asked the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event of disagreement of the parties concerning the determination of minimum services in the private sector, the decision is not taken by the government authorities but by a joint or independent body which has the confidence of the parties. In this regard, the Committee notes the Government’s indication that: (i) the labour inspectorate is an independent authority of the Government despite being part of the Executive Authority; (ii) within the conciliation and arbitration board, the authority merely directs and ensures the due implementation of the process; and (iii) consideration will, however, be given to the possibility of adopting the Committee’s recommendations. Encouraged by the Government’s indications and by the technical assistance agreed upon with the Office, the Committee expects that the Government will be in a position to specify in its next report the measures taken to amend section 545 of the Labour Code as indicated.

Compulsory arbitration in the private sector. With regard to article 326(12) of the Constitution, which provides that collective labour disputes shall, in all instances, be referred to conciliation and arbitration boards, the Committee encouraged the Government to initiate discussions with the social partners on the possibility of amending article 326(12) of the Constitution and the related legal provisions so as to ensure that compulsory arbitration is possible only in cases where strikes may be limited or even prohibited, namely, as far as the private sector is concerned, in essential services in the strict sense of the term or in the event of an acute national crisis. In this regard, the Committee notes the Government’s indication that: (i) the use of the conciliation and arbitration boards is the most effective way of ensuring immediate and rapid handling of collective labour disputes; and (ii) no attempt has ever been made to impose decisions in a labour dispute; on the contrary, efforts are always made to find a peaceful solution. Observing that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration boards, the Committee requests the Government to clarify to what extent the authority of the conciliation and arbitration boards restricts the right to strike of workers’ organizations in the private sector and to take account of the Committee’s previous comments on this matter in the context of the legal reform process which is under way.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, the Committee asked the Government to indicate whether the legislation recognized the right to strike of federations and confederations and to provide information on general strikes called by them and on any dissuasive action by the State. The Committee notes the Government indication that: (i) the collective nature of the right to strike explains the provisions of the Labour Code which require a majority vote of the members at enterprise level and not the support of one organization in particular; and (ii) consideration will, however, be given to the Committee’s recommendation. Encouraged by the Government’s indications and by the technical assistance agreed upon with the Office, the Committee expects that the Government will be in a position to indicate progress, in its next report, regarding recognition of the right to strike of federations and confederations.