Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ecuador (Ratification: 1959)

The Committee notes the Government's report, and in particular the adoption of Act No. 133 published in the Official Bulletin on 21 November 1991 to reform the Labour Code.

Article 1 of the Convention. The Committee notes with interest that the new Act No. 133 provides that employers may not dismiss any of their workers from the time that they notify the respective labour inspector that they have met in a general assembly in order to establish a workers' association until the first meeting of the executive committee, and that the same prohibition applies from the time that a draft collective agreement is submitted.

The Committee notes with regret that the above legal text does not contain amendments dealing with the lack of protection against acts of anti-union discrimination at the time of recruitment, despite the fact that the Committee has been pointing out for many years that the lack of such amendments is incompatible with the Convention.

Articles 4 and 6. The Committee takes due note of the fact that Act No. 133 introduces into the Labour Code the possibility for workers in the public sector who are covered by the Labour Code to be able to bargain collectively. Nevertheless, the Committee notes in this respect that by virtue of section 230, as amended, of the Labour Code, 50 per cent of all workers in the public sector who are covered by the Labour Code, or of the private sector working in the social or public spheres, have to establish a single national, regional, provincial or sectoral central committee, as appropriate, in order to submit a draft collective agreement. The Committee considers that as a minimum the most representative trade union organisation should be able to bargain collectively on behalf of its own members, even if its own membership does not reach the minimum level of 50 per cent established by the new Act (see paragraph 295 of the 1983 General Survey on Freedom of Association and Collective Bargaining). The Committee also notes that the imposition of a compulsory arbitration procedure before the Conciliation and Arbitration Court, if the parties do not reach agreement on a draft collective agreement, raises problems in relation to the application of the Convention.

Furthermore, the Committee regrets to note that no amendment has yet been made to the provision, which for many years the Committee has been drawing attention to is incompatible with the Convention, that prohibits public sector workers who are not covered by the Labour Code from bargaining collectively, since the only exception to the coverage envisaged by the Convention is public servants engaged in the administration of the State.

The Committee notes the Government's information concerning the submission on 22 May 1990 to the Secretariat of the National Congress by a member of the Congress of four draft texts of amendments and two legal interpretations, the purpose of which is to bring the national legislation into conformity with the Convention.

The Committee once again urges the Government to take the necessary measures in the near future to bring its law and practice into full conformity with the Convention and requests it to supply detailed information in this respect in its next report.

Finally, the Committee requests the Government to provide detailed information in its next report on whether federations and confederations can bargain collectively, particularly at the branch level (and to indicate the situation in law and practice).