Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee notes the Government’s report. It also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention, which principally refer to matters already raised by the Committee. The Committee requests the Government to provide its observations in this respect, and particularly on the comments relating to the dismissal of unionized workers following the presentation of a draft collective agreement in a banana plantation.

The Committee notes once again that it has been making comments for several years on the following matters:

–      the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination in relation to recruitment;

–      the need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations, which include not more than 50 per cent of workers subject to the Labour Code, may negotiate, on their own or jointly, on behalf of their own members;

–      the need for public teaching staff and the heads of educational institutions, and for staff who perform technical and occupational duties in the education sector (who are subject to the basic laws on education and the salary scales of teachers), referred to in section 3(h) of the Civil Service and Administrative Careers Act, to benefit from the right to organize and bargain collectively, not only at the national level, but also at the local and establishment levels (the Committee requested the Government to provide in its next report the legislative provisions governing the labour relations of these workers, with an indication of whether they are covered by the guarantees set forth in the Convention); and

–      the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in government departments or other public sector institutions and in private sector institutions that pursue social or public purposes enjoy the rights guaranteed in the Convention.

In this respect, the Committee notes that the Government indicates that a project of amendment of the Civil Service and Administrative Careers Act has been elaborated and that technical assistance has been requested from the subregional office so as to carry out an in-depth study on the necessary reforms before forwarding them to the legislature. Moreover, the Committee takes note of the Act on Teachers’ Career and Posts in the Public Teaching Sector of 1990 which provides that teachers have the right to freedom of association for the study, participation in the planning and execution of educational policy as well as the defence of their professional interests.

In these conditions, the Committee expresses the hope that the necessary modifications will be made in the framework of the envisaged legislative reform so that public teaching staff and the heads of educational institutions, as well as staff who perform technical and occupational duties in the education sector, enjoy the right to organize and collective bargaining. The Committee requests the Government to provide information in its next report on all developments relative to the amendment of the legislation.

Finally, the Committee recalls that in its previous observation it noted that the Confederation of Workers of Ecuador (CTE) and the World Federation of Trade Unions (WFTU) had sent comments on the application of the Convention objecting to section 8 of Executive Decree No. 44 of 30 January 2003, prohibiting any increase in wages and remuneration in the budgets of public sector entities for the financial year 2003, and the decision of the National Remuneration Council (No. 197) prohibiting wage increases in 2004 and 2005 and that it requested the Government to provide its observations on these matters. The Committee notes the Government’s indication in its report that: (1) the formulation and implementation of the fiscal policy in the country is the responsibility of the executive authorities, and is discharged by the Ministry of Economy and Finance; (2) to guarantee a disciplined fiscal policy through which public expenditure is compatible with the real financing capacity, the Organic Act on fiscal responsibility, stability and transparency was adopted, section 3 of which establishes macrofiscal rules to limit the real growth of primary expenditure; (3) the responsibilities of the Ministry of Economy and Finance include ensuring that such macrofiscal rules are strictly complied with in all state activities, and one of these rules relates to the management of remuneration in the public sector and its corresponding financing; (4) the National Remuneration Council (CONAREM) was competent (according to the Government, this body is no longer legally in existence) to establish economic ceilings with which labour agreements between workers and their employers had to comply; and (5) both the Ministry of Economy and Finance and CONAREM have discharged their statutory duties within the context of a disciplined fiscal policy and austerity in public expenditure. The Committee recalls in this respect that all workers in the public administration who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their terms and conditions of employment, including wage conditions, and that if, under an economic stabilization or structural adjustment policy, that is for imperative reasons of national economic interest, a government provides that wage rates cannot be fixed freely by means of collective bargaining, this restriction should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned, in particular those who are likely to be the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 260). It is the Committee’s understanding that the provisions of Executive Decree No. 44 of 30 January 2003 and the decision of the National Remuneration Council (No. 197), to which objections were raised, are no longer in force and it requests the Government to ensure that any future restriction on wage negotiations takes into account the principle set out above.

The Committee also noted in its previous observation that the CTE objected to the Civil Service and Administrative Careers and Unification and Standardization of Public Sector Remuneration Act of 6 October 2003 which, in its opinion, infringes Conventions Nos. 87 and 98 (the CTE indicated that it had requested the Constitutional Court to declare certain sections of the Act unconstitutional), as well as to a draft amendment to the above Act submitted to the National Congress on 16 December 2003. The Committee requested the Government to provide the ruling issued by the Constitutional Court and a copy of the Bill referred to above. The Committee regrets to note that the Government has not provided the requested documentation and asks it to provide it in its next report.

Finally, the Committee recalls that it noted previously that section 94 of Chapter XII of the Basic Act of 29 February 2000 on the economic transformation of Ecuador, which relates to amendments to the Labour Code, explicitly prohibits any revision or increase of the supplementing bonus or the compensation for cost-of-living increases, or the introduction of any other wage or remuneration supplement. The Committee also observed that section 95 of the same Act provides that the current amendments to the Labour Code are mandatory, unless there are provisions to the contrary in existing collective agreements or legally concluded contractual arrangements, for as long as they remain in force and unless otherwise agreed. In this respect, the Committee once again requests the Government to indicate in its next report whether, under section 95 of the above Act, employers and their organizations and workers’ organizations are free to include in collective agreements wage adjustment clauses that take into account cost-of-living increases.