Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee takes note of the comments dated 4 August 2011 by the International Trade Union Confederation (ITUC) on the application of the Convention. It requests the Government to send its observations thereon and on the ITUC’s comments dated 26 and 28 August 2009, referring to serious anti-union practices and the absence of sufficiently dissuasive penalties in the law to punish breaches of labour and trade union legislation.

With regard to the comments of the Ecuadorian Confederation of Free Trade Unions (CEOSL) alleging the use of “blacklists” in one province, the Committee points out that the practice of blacklisting trade union officials or trade unionists is a serious threat to the free exercise of trade union rights. It again requests the Government to hold an inquiry and, if the allegation of blacklisting is confirmed, to take the necessary steps to ensure that the practice is punishable by sufficiently dissuasive penalties.

New Constitution

In its previous comments, the Committee noted that in the context of the adoption of the New Constitution of Ecuador, the Constituent Assembly passed a number of “constituent resolutions” which are mandatory decisions of a “supraconstitutional” nature and are not subject to oversight or challenge by any other authority (including judicial review). The Committee observed that the Committee on Freedom of Association examined the consistency of these resolutions with the provisions of the Convention in Case No. 2684 and criticized the unilateral review of collective agreements deemed to be improper by the administrative authority in the petroleum and health sectors. The Committee notes in this connection the report of the Technical Cooperation Mission carried out in Quito from 15 to 18 February 2011, in the course of which the issue of constituent resolutions was examined. The Committee notes that on that occasion the Government stated that: (1) the constituent resolutions are lawful since they were issued after several public consultations which yielded a high percentage of favourable votes; and (2) Constituent Resolution No. 23 provides that such resolutions may be amended through the procedure applying to the adoption of ordinary laws. The Committee nonetheless observes that in its report the Government states that constituent resolutions are not subject to amendment because they were issued by means of a nationwide consultation in which the Ecuadorean public responded to the call of the Constituent Assembly. The Committee stresses the need to amend the provisions that are inconsistent with the Convention, namely:

• – Constituent Resolutions Nos 002 and 004, which place a ceiling on public sector pay, compensation for unfair dismissal and other grounds of termination of the employment relationship, and ban supplementary private pension funds that involve input from state funds (Executive Decree No.1406 provides that no state resources shall be contributed to supplementary funds). The Committee considers that these provisions, which apply even when public-sector enterprises have sufficient income, impose permanent limitations on collective bargaining that are incompatible with the Convention. The Committee requests the Government to take the necessary steps to remove these limitations and to reinstate the right to collective bargaining on all subjects that affect the working and living conditions of workers.
• – Constituent Resolution No. 008 provides that it is necessary to revise clauses in public-sector contracts that contain undue and disproportionate privileges and benefits, and Ministerial Order No. 00080 and Order No. 00155A lay down administrative procedures for the automatic adjustment and revision of work contracts that include such clauses. The Committee points out in this connection that the checking of clauses in public-sector agreements for possible flaws should be done not by the administrative authority – which in the public sector is both judge and party – but by the judicial authority, and only in extremely serious cases. The Committee considers that regulations that allow the administrative authority unilaterally to cancel or cut clauses in collective agreements are contrary to the principle of free and voluntary bargaining. The Committee accordingly requests the Government to take the necessary measures to repeal or amend Ministerial Order No. 00080 and Order No. 00155A and to indicate whether Constituent Resolution No. 008 is compatible with judicial review of certain clauses in public-sector collective agreements that may be flawed.

Pending legislative issues

The Committee again points out that for several years it has been commenting on the following matters:

• – the need to include in the legislation provisions that ensure protection against acts of anti-union discrimination at the time of 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 with a membership amounting to no more than 50 per cent of the workers subject to the Labour Code may, on their own or jointly (when there is no majority union representing all the workers), negotiate on behalf of their own members;
• – the need for teachers and heads of education establishments in the public sector and for staff performing technical and vocational duties in the education sector who are governed by the Higher Education Act (Act No. 2000-16) and the Act on Educational Careers and Posts in the Public Teaching Sector (Act No. 94 of 1990) to enjoy the right to collective bargaining. The Committee notes in this connection that the Government refers to articles 96 et seq. of the new Constitution of Ecuador which deal with the right to organize and dispute settlement. It requests the Government to indicate whether these workers may conclude collective agreements through their organizations.

Noting the Government’s statement that the National Assembly is in the process of amending the Labour Code, the Committee hopes that in the course of this work – to which the Office provided technical assistance – the Government will take account of all the comments the Committee has been making for years regarding protection against anti-union discrimination and interference and collective bargaining, and requests it in its next report to provide information on all developments in these areas.

Laws adopted in the public sector

Article 6. Exclusion of certain public employees from the guarantees laid down in the Convention. In its previous comments the Committee took note of two bills under debate by the National Assembly, namely: the Basic Bill on Public Enterprises and the Basic Public Service Bill. The Committee notes that they were enacted into law on 24 July 2009 and 6 October 2010, respectively. The Committee notes in this connection that the Basic Act on Public Enterprises states, in section 26, that “in public enterprises or entities established under private law in which public resources account for the majority share, collective bargaining is not open to human resources that are not deemed to be workers as defined in the law, namely public servants who can be freely appointed and removed and, in general, persons holding executive office or positions as directors, senior representatives, managers, advisers, positions of trust, general representatives, consultants and career public servants”. The Committee considers that Article 6 allows exclusion from the Convention’s scope only for public servants engaged in the administration of the State (particularly those who are employed in government ministries and other comparable bodies, as well as ancillary staff) (see General Survey on freedom of association and collective bargaining, 1994, paragraph 262), and that the list of public servants excluded from the scope of application of the abovementioned legislation goes beyond the exclusions allowed by Article 6 of the Convention. The Committee requests the Government to take the necessary measures to ensure that, in accordance with Article 6 of the Convention, public servants who are not engaged in the administration of the State enjoy the right to collective bargaining.