Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

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

A Government representative referred to the fact that in accordance with Ecuador's democratic traditions a new Government had been elected in early 1988, and had taken office in August 1988. The new Government had studied the observations which had been formulated by the supervisory bodies of the ILO in previous years. It wanted to satisfy all of the requests which were reasonably compatible with the national interest. Consequently, three legislative decrees had been sent to Congress, all of which were designed to deal with matters raised by the ILO. The President of the Republic had also approved an Executive Decree which was intended to achieve the same objective.

One of the draft decrees consisted of an interpretation of Decree No. 105 of 7 June 1967 concerning,collective work stoppages. This new decree makes it clear that the 1967 measure does not apply in any way to collective stoppages at work, and that it did not prohibit workers the exercise of their rights to strike or organise - both of which were guaranteed by the Constitution of Ecuador.

Turning to the other comments of the Committee of Experts, the speaker indicated that public servants did have the right to associate and freely to elect their representatives. Their associations were not called trade unions, but they did exist.

It was logical that the members of the executive committees of works councils should be of Ecuadorian nationality. It was also logical that works councils should be dissolved if their membership fell below 25 per cent of the total number of workers at the workplace,because in such circumstances it would no longer be representative of the workers. Studies were under way in order to finalise the Government's positions on these matters.

The proposals which were put forward by the direct contacts mission in 1985 should be examined cautiously. It was especially difficult to criticise the legislative provisions which prohibited the religious or political activities by trade unions. These provisions had profound systemic and organic meaning in Ecuador. They had emerged out of intense political and religious struggles which had bloodied the country for many years: The Government did not wish to see this situation recur in the future. The Constitution permitted full political and religious freedom. Trade unionists were free to worship in their churches, and to fight politically within their parties. However, it was necessary to keep both religion and politics out of trade union affairs. The Government hoped that the present Committee and the Committee of Experts would respect national sensibilities in relation to this matter.

Referring to the comments of the Committee of Experts on the need for legislation protecting workers against anti-union discrimination at the time of recruitment, his Government did not understand what this observation meant. He referred to various provisions of the Labour Code which were intended to protect workers in various contexts. He called upon the Committee of Experts to indicate precisely what changes they wanted to see implemented in this area.

Turning to the comments sent to the Committee of Experts by the Ecuatorian Confederation of Class Organisations (CEDOC), he stated that comments sent on 22 January 1988 had nothing to do with the present Government. It was inopportune, therefore, for the Committee of Experts to refer to these comments in their report. If CEDOC believed that their comments were still relevant this organisation should indicate which cases they wished to denounce.

In relation to the delegation to officials of a lower category of the power to refuse to register workers' organisations, he pointed out that there had to be some delegation of authority in a complex administration. The Constitution provided that the different ministries should deal with different topics. The Labour Code expressly empowered the Labour Directorate to deal with a range of issues including occupational health and safety, minimum wages, social services and labour organisation. It followed that there was nothing improper in the fact that officials in the Directorate dealt with matters pertaining to labour organisations.

The Worker member of the United Kingdom thanked the Government representative for his detailed statement on the state of the law and on the legislative changes envisaged. He declared, nevertheless, that it would have been more helpful if this information could have been provided to the Committee of Experts.

The Committee of Experts had said that since 1985 there had been no indication that the Government had taken any measures to implement the proposals made to the Government by the direct contacts mission. The Government representative said that he looked to the present Committee for advice. All the necessary advice was contained in the report of the mission, which had been agreed with the Ministry of Labour in the country. The present Committee wanted the Government to indicate that it intended to make these changes as soon as possible. The speaker observed that the Government representative said that public servants had the right to organise and to elect their representatives. However, this did not grant to civil servants a right to form or join the union of their choice in full freedom. He asked the Government representative to give an assurance, and to provide evidence to the Committee of Experts to the effect that public servants would be allowed to join unions of their own choosing, and that they would be treated in no way differently from other workers in this regard.

The Workers' members said that in 1985 a direct contacts mission had taken place because of problems which had been observed in previous years in relation to trade union freedoms as embodied in this Convention. They had hoped that after the direct contacts mission they would see appropriate changes to the legislation - for example, in relation to the right to organise public servants and the administrative dissolution of trade unions. The present Committee had waited for two years after the mission in order to see what would happen. By 1987 nothing had happened, and the report of the present Committee for that year contained a long special paragraph relating to Conventions Nos. 87 and 105. The Workers' members had hoped that they would see real change - especially after lengthy discussions in the Committee, involving the Vice-Minister of Labour. Yet today, the present Committee was faced with exactly the same situation. The Workers' members had heard a speech which contained vague promises, but still nothing had been done. They considered that this lack of progress over many years suggested to the Committee a case of continued default in application of the Convention. The Workers' members expressed their hope to hear more positive responses from the Government. They expressed the hope that the discussion would elicit more concrete proposals from the Government representative.

The Employers' members agreed that there had been no progress in this case, and perhaps there had even been movement in the opposite direction. They noted that the Committee of Experts had dealt with six problems areas. The Government representative had not addressed any of them, nor had he indicated that any changes were going to be made in relation to them. A direct contacts mission had taken place in 1985. It had suggested appropriate legislation solutions. It now appeared that these were not being considered in any realistic way. The present Committee now finds itself in the same position as in 1987 and 1988. The Government, in fact, showed no real will to correct any of the deficiencies that had been identified. It talked in terms of incursions upon national sovereignty; when it ratified an ILO Convention, it undertook an obligation to meet the requirements of that Convention. That had not been done in this case.

The Government member of Venezuela felt that it was important to take account of the democratic context of the country. It had a long democratic tradition, and there was undeniably an atmosphere of freedom. Some of the cases with which the present Committee had to deal were far more serious than this one. He understood the Committee's impatience because of the delay in implementing the recommendations of the direct contacts mission. However, it was necessary to bear in mind that there was a new Government in Ecuador, and that it was important to try to maintain dialogue with that Government.

The Workers' members put five specific questions to the Government representative: (1) Did the draft legislation exist in written form? (2) Where had the draft texts been presented within the country? (3) Had the texts been sent to the ILO for scrutiny by the Committee of Experts? Was the Government going to do so? (4) Did the draft laws respond to the proposals formulated by the direct contacts mission to bring the law into full conformity with the Convention? (5) Did the draft laws respond to the specific comments which had been made over a number of years and which were repeated in the report of the Committee of Experts this year?

These were precise questions and if the Government was able to provide precise answers then it would be possible to continue a dialogue.

The Government representative indicated that the draft decrees had been submitted by the President of the Republic to the relevant legislative body - that is the Congress - for proclamation as a law. The Executive Decree had been sent, with presidential endorsement, to the relevant minister in charge of implementation. He had the relevant texts with him, and would immediately hand them to the Secretariat.

The Workers' members noted that this constituted a partial reply to their question. The Government representative had not indicated whether the text corresponded with those agreed with the direct contacts mission. Since there was a formal promise to submit the documents to the Secretariat for examination by the Committee of Experts, they were prepared to be patient for one more year. They believed that the Committee's observations should be contained in a special paragraph, but there should not be any reference to continued default in application of the Convention.

The Workers' members proposed that the conclusions should be included in a special paragraph.

The Employers' members expressed some hesitation at the use of a special paragraph because there had been one small step taken in good faith to resolve the situation.

The Workers' members pointed out that special paragraphs were not used to condemn governments, but rather to show that the Committee had discussed an important issue. Furthermore, there had been a special paragraph in 1987. It would have been possible to have gone further on this occasion. but the Workers' members noted that there was some hope that the draft legislation would contain satisfactory responses. This should be reflected in the conclusions.

The Employers' members agreed to the Workers' proposal subject to this reformulation.

The Government member of Venezuela was concerned that a number of more serious cases of violations were not being recorded in a special paragraph; in the present report of the Committee, one might be led to conclude that the Committee applied dual standards in dealing with cases before it.

The Committee took note of the information provided by the Government representative. The Committee recalled that the direct contacts mission of 1985 had, in agreement with the Government, prepared draft amendments designed to remove a serious disparity between the legislation and the provisions of the Convention and in order to give effect to the comments of the Committee of Experts.

The Committee noted with satisfaction that the draft legislation would be transmitted for examination by the Committee of Experts and expressed the hope that these drafts contained solutions to the existing points of difficulty or divergence from the Convention.

The Committee took note of the assurances provided by the Government that these draft amendments would be implemented as soon as possible in order to bring the legislation into conformity with the Convention. The Committee expressed the hope that the Government would be in a position to show proof of progress in the application of the Convention by next year.

The Committee decided that its conclusions should appear in a special paragraph.