Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to:

- the denial of the right to organize of civilian employees of the armed forces (Case No. 1664 of the Committee on Freedom of Association);

- the loss of the guarantee of job security by persons participating in sympathy strikes (section 65 of Act No. 133);

- the implicit denial of the right to strike for federations and confederations (section 491 of the Labour Code); and

- the fact that the decision rests with the Ministry of Labour in the event of disagreement between the parties as to the minimum services to be maintained in the event of a strike in services considered by the Government to be essential, even if they are not necessarily so, including when the State is a party to the dispute (new section 503 of the Labour Code).

With regard to the first point, the Committee notes that the Supreme Court of Justice ruled that the enterprise TRANSNAVE and its workers were excluded from the scope of the Labour Code because they are governed by military laws and regulations, and that they have thus been denied the right to organize.

In this connection, the Committee reminds the Government that under Article 2 of the Convention workers and employers, without any distinction whatsoever, have the right to form organizations of their own choosing, with the one possible exception contemplated in Article 9, of members of the armed forces and the police force. The Committee considers that the civilian employees of TRANSNAVE should have the right to form, should they so wish, their own organizations. The Committee asks the Government to keep it informed of any measures adopted to ensure the right to organize of this category of workers.

As concerns the loss of the guarantee of job security for persons participating in sympathy strikes, the Committee, while noting the information provided by the Government that ten sympathy strikes were registered in 1992, would call attention to the principle according to which "the maintenance of the employment relationship is a normal consequence of recognition of the right to strike". In the Committee's view, legislation should provide for genuine protection in this respect, otherwise the right to strike may be devoid of content (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 139).

In this regard, the Committee considers that it should not be possible to sanction workers with dismissal for participating in sympathy strikes when "the initial strike they are supporting is itself lawful" (see 1994 General Survey, op. cit., paragraph 168).

As concerns the implicit denial of the right to strike for federations and confederations, the Committee takes due note that, according to the Government between November 1975 and the present, confederations have carried out 28 national strikes, even though the labour legislation does not expressly recognize this right for federations and confederations. The Committee therefore requests the Government to take measures to bring the legislation into conformity with the practice and with the principles of freedom of association.

As concerns the determination by the Ministry of Labour of minimum services to be maintained, in the event of a disagreement between the parties, in cases of strike in services considered by the Government to be essential, even if they are not necessarily so, the Committee notes the Government's information to the effect that between the time the new law came into force until October 1994, the Director-General of Labour has exercised this exceptional power, having first consulted the parties, on three occasions when there were disputes in food and hotel enterprises in the private sector. In this connection, the Committee recalls that it has always been of the view that the right to strike may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey, op. cit., paragraph 159), which is not the case of the food industry and hotels sector.

With regard to minimum services which are not considered to be essential in the strict sense, bearing in mind that a minimum service system restricts one of the essential means of pressure available to workers to defend their economic and social interests, the Committee considers that their organizations should be able, should they so wish, to participate in defining such a service, along with employers and the public authorities (see 1994 General Survey, op. cit., paragraph 161). In this regard, the Committee asks the Government to take steps in order that the legislation be amended in conformity with the above-mentioned principle.