Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

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

The Government has supplied the following information:

As regards the comments of the Committee of Experts concerning the increase of the minimum number of workers required for the establishment of occupational organizations (section 439 of the Labour Code), the reforms have not impaired the guarantees provided for by the Convention since the right to associate is effectively in force in this country. The Government states that, according to the information furnished by the Department of Occupational Organizations of the Ministry of Labour, 87 occupational organizations in total have been registered in the country between 21 November 1991 and 15 May 1993; there are 45 trade unions, 15 works councils, 24 associations and three federations.

As regards the decisions of the Ministry of Labour when there is disagreement between the parties on the minimum services to be provided in the event of a strike (unnumbered provision, inserted after section 503 of the Labour Code), this provision is in force since the promulgation of Act No. 133 revising the Labour Code of 21 November 1991. However, until now there has been no case where the labour authorities have had recourse to the exceptional possibility of establishing essential minimum services when a strike has been called in institutions which furnish services of public interest.

Regarding the follow-up to the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, the Government states that a request has once again been addressed to the current President of the National Congress to proceed immediately to the necessary steps concerning the adoption of these draft amendments in order to bring into full conformity Ecuadorian legislation with the international Conventions ratified by the country, by emphasizing the obligation undertaken by the Government before this Committee in June of last year. Together with the request, a file containing precedents and full information on this matter was also transmitted. A file containing documentation on the proposed draft amendments was transmitted to the chairman of the Standing Legislative Committee on Labour and Social Matters. In his response, the president of the National Congress stated that he had requested the secretariat to take the necessary steps so that the plenary sessions of the committees could deal with the said draft amendments. Finally, on this occasion, the Government reiterates its decision to bring its national legislation fully into line with the international obligations to which it has subscribed.

In addition, a Government representative, the Minister of Labour and Human Resources, first indicated that his Government had come to power only in August 1992, but that since then it had been engaged in examining the questions which were the subject of the Committee of Experts' comments. In this regard, the affair had been brought before Parliament by the communication of 27 April 1993 so that the draft laws of 1990 relating to Conventions Nos. 87, 98, 105 and 111 could be examined by the latter. In addition, the Government had drawn the attention of Parliament to the urgency of approving the above-mentioned draft laws. Concerning these drafts, he stated that the Government had done all in its power to persuade the majority of the Members of Parliament to vote in favour of the adoption of the proposed reforms, but the final result was uncertain since the Government did not have the majority in the heterogeneous Congress composed of 17 political parties. As for the question of increasing the minimum number for the establishment of a trade union to 30, he stressed, on one hand, that the same legal requirement of a minimum number of workers to form unions existed in other member States of the Andean Pact (Peru, Bolivia and Venezuela - 20, and Colombia - 25) and, on the other hand, that this Convention did not specify a minimum number in this regard. In any case, unions continued to be formed normally since the legislative reform of 1991; a total of 87 unions had been legally established between November 1991 and 15 May 1993. The Committee of Experts considered, however, that the minimum number of 30 workers, which could be admissible in the case of sectoral trade unions, should be reduced for enterprise unions. The Government found this suggestion problematic and had not studied it because it would not be easy to determine what were sectoral trade unions and enterprise unions. Regarding minimum services in the event of a strike, the Government recalled that the legislative reform of 1991 had established a procedure on this matter and that the subject of the above comments was this procedure and not the minimum of 20 per cent of workers required for such services. He specified that the above procedure consisted of the obligation on the parties concerned to agree, during the 48 hours after notice of the strike to the employer, upon the modalities of minimum services in the services considered to be essential, and in the absence of agreement, of the fixation of such modalities by the President of the Conciliation and Arbitration Tribunal, a tripartite organ, since the President was the Director or Sub-director of Labour. The Government did not understand why the ILO's supervisory bodies could object to the establishment of this procedure while it recognized the right to ban or to limit strikes in essential public services. In practice, the power in question had not been exercised since the entry into force of the revision of the Labour Code, to establish the modalities of minimum services by the intermediary of the authorities. He reiterated the determination of his Government to find solutions for the problems raised by the Committee of Experts.

The Workers' members remarked on the length of time during which the case had been outstanding and the similarity of the Government's statement to that made in 1992 and expressed doubt about the Government's intention to make the necessary changes. As for the minimum number of workers for the establishment of trade unions, they stated it was not for the Government to try and avoid multiplicity of unions. Regarding minimum services in the event of a strike, the relevant legislation concerning the independent body that determined such services should be examined by the Committee of Experts. They were disappointed to see no positive action taken in view of all the discrepancies between the national legislation and the Convention. They requested that copies of the draft laws mentioned by the Government be sent to the Office.

The Employers' members remarked that the Convention did not set forth criteria on the minimum number of workers for the establishment of trade unions or of works councils, and that the principle should be the freedom of association. Concerning strikes, they considered that the Committee of Experts' comments on the relation between Article 8, paragraphs 1 and 2, of the Convention needed more nuance. They welcomed the Committee of Experts' recognition of possibilities of restricting or prohibiting strikes in essential services which, in their opinion, should be determined by social partners or an appropriate forum of the country. They agreed with the statement of the Workers' members' that various discrepancies existed and hoped for a detailed report from the Government for examination by the Committee of Experts.

The Workers' member of France wondered about the aim of setting a minimum number of workers for establishing trade unions. He considered that the requirement of minimum percentage of essential services hindered the right to strike, and expressed doubt about the Government's intention for changes.

The Workers' member of Greece recalled that the amendments to the Labour Code by Act No. 133 had been considered by the Workers' member of Ecuador at the 1992 Committee as a step backwards. He requested precisions on the reform concerning the five points raised by the Committee of Experts.

The Workers' member of Colombia pointed out the danger of leaving the definition of essential services unspecified in the legislation and thus to the discretion of the Government. He wanted further information on the precise contents of the draft legislation.

The Government representative provided some additional information on certain points raised by the Committee of Experts. He emphasized the right of the workers in the public sector to form and join trade unions of their own choosing, as well as to negotiate freely. His Government only made limitations on certain exaggerated aspirations which would have the consequence of reducing the financial resources of the State entities so that they would no longer be in a position to discharge their functions of public service. However, it had never been the case of interference in the right of workers to organize freely and to bargain collectively. Another aspect was the penalty of imprisonment for the instigators of collective work stoppages and illegal strikes, i.e. when public services were totally stopped. As to the requirement that members of the executive committees of works councils be Ecuadorian, he specified that this traditional requirement in Ecuador could be derogated when a situation of reciprocity existed with another country. Concerning the dissolution of works councils, section 461 of the Labour Code concerned only the cases of works councils whose membership dropped below 25 per cent of the total number of workers. In the other cases, only a judicial decision could dissolve a union. He stated that his Government had so far not dissolved any works council administratively and that the proposed reforms covered this subject. Trade unions that consisted of fewer than 30 members but more than 15 as required by the previous legislation could continue exercising their activities, since the new Act was not retroactive. Regarding the prohibition on unions from taking part in religious or political activities, this prohibition was meant to guarantee the freedom of political opinion and of religion, namely that the workers should not be obliged to share a political opinion or a belief in order to affiliate to a trade union or to exercise union activities. Otherwise, trade unions were not prohibited from expressing themselves on points of general politics. He reaffirmed his Government's commitment to resolving the outstanding problems and emphasized the Government's efforts to have the draft laws, which were elaborated with the assistance of an expert mission from the ILO, approved by Parliament. In this regard, the Government wished to count on the support of Ecuadorian workers. He stressed that all the relevant information and the draft texts proposed since 1990 had been communicated to the ILO.

The Workers' member of Ecuador stated that the draft laws to follow up the comments of the Committee of Experts were still with the Congress and that the trade unions supported any law that was favourable to the situation of workers. He further added that Law No. 133 had been challenged as unconstitutional in court. Finally, he requested that measures be taken to remove obstacles in the formation of trade unions. These obstacles were caused by some officials and their bias in conflict during social conflicts.

See also under Convention No. 105, as follows:

The Government has communicated the following information:

The Minister for Labour and Human Resources has proceeded to carry out the appropriate steps before the National Congress, which is responsible for discussing the draft reforms of the law which were prepared in 1989, to take note and approve of these reforms. The Government has sent a copy of the official letter No. 02-AIT-93 of 13 April 1993 that the Minister of Labour and Human Resources has addressed to the President of the National Congress and in which he requests that the constitutional procedures be engaged with respect to the following bills:

-- II-90-154 to interpret Legislative Decree No. 105 of 7 June 1967, published in the Official Register No. 161 of 3 July 1967, respecting collective work stoppages.

-- II-90-156, containing reforms of sections 443(11), section 455(4), section 456 and section 43(f) of the Labour Code;

-- II-90-157, to amend various provisions of the Commercial Code;

-- II-90-158, to repeal section 165 of the Maritime Police Code;

-- II-90-159, to amend section 11 of the Co-operatives Act;

-- II-90-160, to interpret the provisions of sections 53, 54, 55 and 56 of the Penal Code, and section 22 of the Code on the Execution of Penalties and Social Rehabilitation, with respect to forced labour.

The Committee noted the very detailed written and oral information provided by the Minister of Labour and Human Resources according to which the Government was committed to adopting the draft law revising the Labour Code prepared in cooperation with a technical mission of the ILO in 1989 and the assistance of the Regional Adviser on Standards, and to bringing its legislation into full conformity with its international obligations. The Committee recalled that the serious discrepancies between the national legislation and the Convention had been the subject of many discussions in the past and its conclusions had been contained in special paragraphs of its report. The Committee regretted that the Government had not yet adopted the appropriate measures to ensure the application of this fundamental Convention, ratified 25 years ago, and once again urged the Government to communicate a copy of the amendments to the Labour Code as soon as they were adopted. The Committee expressed the hope that it would be in a position to note, in the very near future, progress made with regard to the whole of the legislation.

See also under Convention No. 105, as follows:

The Government has communicated the following information:

The Minister for Labour and Human Resources has proceeded to carry out the appropriate steps before the National Congress, which is responsible for discussing the draft reforms of the law which were prepared in 1989, to take note and approve of these reforms. The Government has sent a copy of the official letter No. 02-AIT-93 of 13 April 1993 that the Minister of Labour and Human Resources has addressed to the President of the National Congress and in which he requests that the constitutional procedures be engaged with respect to the following bills:

-- II-90-154 to interpret Legislative Decree No. 105 of 7 June 1967, published in the Official Register No. 161 of 3 July 1967, respecting collective work stoppages.

-- II-90-156, containing reforms of sections 443(11), section 455(4), section 456 and section 43(f) of the Labour Code;

-- II-90-157, to amend various provisions of the Commercial Code;

-- II-90-158, to repeal section 165 of the Maritime Police Code;

-- II-90-159, to amend section 11 of the Co-operatives Act;

-- II-90-160, to interpret the provisions of sections 53, 54, 55 and 56 of the Penal Code, and section 22 of the Code on the Execution of Penalties and Social Rehabilitation, with respect to forced labour.