Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the Government’s reply to the comments of the Ecuadorian Medical Federation of 2012 and the comments made by the International Trade Union Confederation (ITUC) in 2011.

Application of the Convention in the private sector

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee previously requested the Government to take the necessary measures to ensure that the legislation includes a specific provision guaranteeing protection against acts of anti-union discrimination at the time of recruitment. In view of the lack of information provided by the Government on this issue, the Committee cannot but reiterate its previous request.

The Committee also regrets that the Government has not provided its observations on the comments made by the ITUC in 2009 which referred to serious allegations of anti-union practices in various enterprises and institutions. The Committee requests the Government to conduct an inquiry into these allegations and, if these practices are confirmed, to take the necessary measures to ensure that they are punishable by sufficiently dissuasive penalties.

Article 4. Promotion of collective bargaining. The Committee noted previously the need to amend section 229(2) 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 Committee requests the Government to take measures for this purpose.

The Committee also notes that various national trade union federations allege that the social partners have not been consulted concerning the draft reform of the Labour Code, which is reported to contain provisions that are contrary to the Convention. The Committee requests the Government to provide its observations on this matter and to ensure that any draft reform is the subject of in-depth consultations with the representative organizations of workers and employers.

Application of the Convention in the public sector

The Committee notes the 2013 comments of the ITUC and of the Trade Union Confederation of Ecuador and the joint comments by Public Services International Ecuador, the National Confederation of Educational Workers, the General Confederation of Workers of Ecuador, the Federation of Oil Workers of Ecuador, the Trade Union Confederation of the Public Sector in Ecuador, the Confederation of Health Professionals, the National Federation of Public Servants and various local trade union organizations referring to matters already raised by the Committee and also indicating that: (i) the new legislation applicable in the public sector does not provide for penalties for acts of anti-union discrimination or interference; (ii) the legislation classifies as public servants the great majority of workers in the public sector, thereby denying them the right to collective bargaining; (iii) Executive Decree No. 225 of 2010 institutionalizes the capacity of the Ministry of Industrial Relations to unilaterally revise collective agreements applicable to workers in the public sector; and (iv) the Basic Act on Higher Education (LOES) of 2010 and the Basic Act on Intercultural Education (LOEI) of 2011 do not recognize the right of public employees in the education sector to engage in collective bargaining. The Committee expresses its concern at the content of these allegations and requests the Government to provide its observations on this matter.

Articles 1 and 2. Protection against acts of anti-union discrimination and interference. The Committee notes that the Committee on Freedom of Association drew to its attention the legislative aspects of Case No. 2926 relating to allegations of numerous anti-union dismissals in the public sector through the procedure of the “compulsory purchase of redundancy” introduced by Executive Decree No. 813 [see Committee on Freedom of Association, 370th Report, paragraph 385]. In this respect, the Committee observes that the legislation respecting the public sector adopted in recent years (Organic Act on the Civil Service (LOSEP), LOEI, LOES) in general prohibits discrimination in employment, but does not contain specific provisions respecting anti-union discrimination. Under these conditions, the Committee requests the Government to indicate: (i) the provisions applicable to the public sector which guarantee that any acts of anti-union discrimination envisaged in Article 1 of the Convention are effectively prohibited; (ii) the procedures and mechanisms applicable in cases of anti-union discrimination; and (iii) the provisions establishing penalties applicable to acts of anti-union discrimination in the public sector. Furthermore, under the terms of Article 2 of the Convention, the Committee requests the Government to indicate the provisions which protect organizations of public servants and public sector workers against acts of interference by the employer, and to specify the penalties applicable in such cases.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted Constituent Resolutions Nos 002 and 004, and Executive Decree No. 1406, which set a ceiling on remuneration in the public sector and exclude from collective bargaining a series of matters, even where public sector enterprises have sufficient income, and accordingly impose permanent limitations on collective bargaining that are incompatible with the Convention. The Committee notes that the LOSEP and the Organic Act on Public Enterprises (LOEP) contain provisions which maintain these limitations and even extend them in relation to remuneration. The Committee therefore requests the Government to take the necessary measures to restore the right to collective bargaining on all matters which affect the working and living conditions of workers in the public sector that are covered by the Convention, and to provide information in this respect.

Furthermore, with reference to constituent Resolution No. 008, Ministerial Order No. 00080 and Order No. 00155A, the Committee recalled in its previous comments that the determination of any abusive character of clauses in collective agreements in the public sector should not be carried out by the administrative authorities, but by the judicial authorities. The Committee notes that section 18 and the first transitional provision of Executive Decree No. 225 of 2010 continue to empower the Ministry of Industrial Relations to determine any abusive character of clauses in collective agreements in the public sector. Under these conditions, the Committee once again requests the Government to take the necessary measures to ensure that the determination of any abusive clauses in collective agreements in the public sector lies within the competence of the judicial authorities.

Article 6. Scope of application of the Convention. In its previous comments, the Committee noted that, under the terms of the LOEP and the LOSEP, the list of public servants excluded from the right to collective bargaining goes beyond the exclusions allowed by Article 6 of the Convention. The Committee also notes that the LOES and LOEI exclude all public servants in the education sector, including teachers, from the right to collective bargaining. Under these conditions, and recalling that under Article 6 of the Convention, only public servants engaged in the administration of the State may be excluded from its scope of application, the Committee once again requests the Government to take the necessary measures to ensure that all categories of public servants who are not engaged in the administration of the State enjoy the right to collective bargaining.

The Committee hopes that the Government will take into account all of the comments that it has been making for years and that, in consultation with the most representative organizations of workers and employers, it will take the necessary measures to amend the provisions of the laws and regulations referred to above, including those contained in the Labour Code that is currently being revised. The Committee requests the Government to provide information in its next report on any developments in this respect and reminds it that the technical assistance of the Office is at its disposal.