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

Article 3 of the Convention. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (Basic Reform Act) of 2017 prohibited strikes in the following public services: health, environmental sanitation, education, the justice system, the fire service, social security, electricity, drinking water and sewerage, oil and gas production, the processing, transportation and distribution of fuel, public transport, the postal service and telecommunications. The Committee requested the Government to take the necessary steps to ensure that the legislation did not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes. The Commission notes the Government’s reiteration that depriving the population of public services infringes on their rights and that the Basic Reform Act covers the determination of minimum services to be maintained during a strike. The Committee recalls that the ILO supervisory bodies have considered that it should be possible for strikes to be organized by workers in transport services, the public education service, fuel distribution services and the hydrocarbon sector (2012 General Survey on the fundamental Conventions, paragraph 134). The Committee notes that the Basic Reform Act establishes that, in the absence of an agreement, the arrangements for the provision of minimum services will be established by the Ministry of Labour. The Committee recalls that any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised, and is empowered to issue enforceable decisions (2012 General Survey, paragraph 138). 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 formulate their programmes and that the determination of minimum services is in accordance with the above principles.

Determination of minimum services in the private sector. The Committee previously requested 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. The Committee notes the Government’s reiteration that, if there is no agreement on the carrying out of minimum services, it is up to the Ministry of Labour through the regional directorates to establish procedures for the provision of minimum services. The Committee regrets to note that no progress has been made in taking its comments into account and therefore once again requests the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event the parties disagree concerning the determination of minimum services in the private sector, the decision is not taken by government authorities.

Compulsory arbitration in the private sector. The Committee previously observed that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals, and asked the Government to adopt the necessary measures to amend the legislation, in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s reiteration that mediation is a process undertaken voluntarily and that this process becomes compulsory if differences persist between the parties in situations such as strikes. However, the Committee observes that the provisions in question contain the possibility of referring disputes not only to mediation but also to compulsory arbitration. In this regard, the Committee recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee notes that, according to CEOSL, FETRAPEC, UNE and PSI, the number of strikes in the country has fallen significantly to almost zero since the legislation made it mandatory to submit collective disputes to binding arbitration. The Committee therefore once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations indicated above.

Articles 3 and 6. Right to strike of federations and confederations. The Committee has been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes the Government’s reiteration that federations and confederations of workers play a vital advisory and support role with respect to strike calls by primary-level labour organizations. The Committee also notes that, according to CEOSL, FETRAPEC, UNE and PSI, federations and confederations cannot legally declare strikes because they can only be declared by enterprise-level unions. The Committee recalls that it has considered that strikes are often called by federations and confederations which should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention (2012 General Survey, paragraph 122). The Committee therefore requests the Government to take the necessary legislative measures to ensure that trade union rights, including the right to strike, can be fully exercised by federations and confederations.