Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee notes the Government's report and the discussion that took place during the 1998 Conference Committee.

The Committee recalls that in its previous observation, it noted that two Bills had been drafted in the course of a technical assistance mission of the Office, which took place in September 1997 at the request of the Government. The contents of these Bills and the Government's comments on certain points are as follows:

-- the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests (on this point, the Government indicates in its report that article 35(9) of the Constitution recognizes the right to organize of civil servants). The Committee observes, however, that article 35(9) provides that "labour relations in the institutions included in subsections (1) (legislative, executive and judicial organs and bodies), (2) (electoral bodies), (3) (organs of control and regulation), and (4) (entities that are part of an autonomous regime) of article 118, and with respect to legal persons created to exercise public authority, along with civil servants, are covered by the laws governing public administration";

-- the repeal of section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, and the adoption of a provision according to which strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or for those who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population);

-- an addition to section 452 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-- the amendment of section 454(11) to provide that higher-level organizations enjoy the right to express their opinions on the Government's economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-- adding to the end of section 466(2) a provision to the effect that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-- the deletion from section 466 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official. The Government in its report indicates that this section of the Labour Code would become inoperable were a non-Ecuadorean worker to request to be recognized as a trade union leader, pleading the application of Convention No. 87 or requesting a competent judge to declare the provision of the Labour Code to be unconstitutional. The Committee observes, however, that article 13 of the Constitution states that "foreigners are entitled to the same rights as Ecuadoreans, unless otherwise provided in the Constitution and the law". The Committee considers that the Constitution, as presently worded, does not clearly guarantee to Ecuadoreans the right to hold trade union leadership posts;

-- the amendment of section 472 on the dissolution by administrative measures of a works committee in order to grant to the workers' or employers' organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee. The Government indicates that for the last 15 years, no such dissolution has taken place in practice;

-- the amendment of section 522(2) concerning minimum services in the event of a strike providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers' and employers' organizations in the sector; and

-- the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-- the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 450, 466 and 459 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced to facilitate the establishment of enterprise unions and not to hinder their establishment, particularly in view of the very large proportion of small enterprises in the country;

-- the deprival of the guarantee of security to workers who take part in a solidarity strike (section 516 of the Labour Code). The Government insists on the fact that it is trying to prevent the abusive use of solidarity strikes that would result in long periods of immobility;

-- the implicit refusal of the right to strike for federations and confederations (section 505 of the Labour Code).

-- the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice, and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association). The Government indicates that the relationship between the different constitutional provisions would require the revision of the trade union's request for registration.

The Committee observes that the Government stresses with respect to all the points raised the supreme importance of article 163 of the Constitution by virtue of which international conventions and treaties are incorporated ipso jure into national law and prevail over other laws and lower-level standards. The Government indicates further that the Minster of Labour is in the process of drafting the necessary directives so that when mere administrative acts covered by national laws occur, then the criteria set out in the Constitution would apply. In the case of conflict, resort will be had to international labour Conventions, and these will prevail over the laws. In addition, the Government states that: (i) it is seeking to identify acceptable mechanisms so that while there is no new labour legislation, the existing legal provisions will not apply and the international labour Conventions will prevail; (ii) the Government has never abandoned the idea of continuing with the reform of the labour legislation. In this regard, if the Ministry of Labour considers it necessary, it will request the technical assistance of the Office to bring the labour legislation into conformity; (iii) the Ministry of Labour indicates its good will in retaining all the positive aspects of the technical assistance mission that visited Ecuador in 1997; and (iv) it requests the Committee to indicate what could be taken from the agreements reached during the mission in 1997, in the light of the new Constitution, in order to assist them with the follow-up. Finally, the Government states that it is seeking solutions to the other problems raised by the Committee on which it has not yet commented.

In these circumstances, the Committee, while taking note of the good will expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention. The Committee requests the Government to take the measures necessary without delay to bring the legislation and the practice into conformity with the Convention. The Committee reminds the Government that the Office is available to provide technical assistance, and expresses the firm hope that the Government will supply information in its next report concerning all progress achieved with respect to the questions raised.

The Committee notes that certain new provisions of the 1998 Constitution give rise to, or could give rise to, problems with respect to the application of the Convention:

-- Article 35(9) which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations for those in State institutions, the workers will be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the requirements of the Convention. In this regard, the Committee requests the Government to indicate if article 35(9) of the Constitution implies that only one organization or many can be established per public body or institution; if many can be established, whether preferential rights are granted to the most representative organization, and in the case of an organization becoming the most representative, whether it can exercise these rights in the place of the organization that no longer has the majority.

-- Article 35(10), first paragraph, which recognizes and guarantees the right to strike and the right to lockout to workers and employers pursuant to the legislation and second paragraph, which states that "it is prohibited to interrupt, for whatever reason, public services in particular those concerning health, education, justice and social security; electrical energy, drinking-water and sewers; transformation, transport and distribution of fuel, public transport and telecommunications. The law will provide appropriate sanctions". The Government states that the first part of paragraph (10) recognizes and guarantees the right to strike and that the concept of "interruption" under the Constitution is interpreted as an action which results in the interruption or cessation, far removed from what the law generally stipulates. In this context, the Committee is of the opinion that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous General Surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the interruption of strikes in the public sector is too extensive and that in particular education and general transport services (of persons and products) cannot be considered to be essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to take measures to amend the constitutional provisions noted in conformity with freedom of association principles and to specify the measures envisaged or taken to grant compensatory guarantees to workers deprived of the right to strike.