Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014, which refers to issues dealt with by the Committee and to anti-union dismissals in an enterprise in the banana production sector. The Committee requests the Government to send its comments on this subject. The Committee notes the Government’s reply to the previous observations of ITUC and those of the International Confederation of Free Trade Unions (ICFTU) of 2006. The Committee regrets that the Government has not provided its complete comments on the observations of the Trade Union Confederation of Workers of Ecuador (CSE) received on 6 September 2013, or to the observations of the Public Services International (PSI)-Ecuador received on 16 September 2013, which condemn the incompatibility of many provisions in national law relating to the public sector with the Convention and which will be examined in the present observation.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 103rd Session, May–June 2014)

The Committee notes the discussion that was held at the Conference of the Committee on the Application of Standards in June 2014 concerning the application of the Convention in Ecuador. The Committee appreciates the invitation that was extended by the Government on that occasion for an ILO mission to visit the country to address the issues raised relating to the application of the Convention and notes that this visit is planned for early 2015.

Application of the Convention in the private sector

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had 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. The Committee notes that in its report, the Government requests the Committee to clarify this point as it considers that anti-union discrimination cannot exist at the time of recruitment given that it is only once a person is employed he or she can join a union. In this respect, the Committee recalls that Article 1 of the Convention expressly prohibits anti-union discrimination at the time of recruitment of the individual worker, so that access to employment does not depend on the worker’s non-affiliation with a trade union or their relinquishment of their membership to a trade union, as well as practices such as the formulation of “black lists” of members in order to prevent their recruitment. Under these conditions, the Committee once again requests 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 access to employment and that it reports on any development in this regard.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee pointed out the need to amend section 221 of the Labour Code (previously section 229(2)) 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 notes the Government’s indication that the purpose of the requirement under section 221 is to increase the legitimacy of the collective bargaining process. In this respect, the Committee recalls that the requirement for an excessively high percentage of representativity in order to be allowed to participate in collective bargaining can hinder the promotion and development of free and voluntary collective bargaining in conformity with the Convention and that the rule in section 221 can remove the opportunity for collective bargaining for a representative trade union which does not reach an absolute majority. The Committee therefore once again requests the Government to take measures to amend section 221 of the Labour Code in the manner indicated and to report on any new developments in this regard.

The Committee also recalls that various national trade union federations allege that the social partners were not being consulted about the draft revision of the Labour Code. While it notes the information provided by the Government in its report on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which indicates that the draft has been widely disseminated among the public and that, moreover, the President of the Republic announced on 15 November 2014 a new proposed revision of various aspects of the Labour Code. The Committee requests the Government to ensure that any draft reform is the subject of in-depth consultations with the representative organizations of workers and employers, to reach, in so far as possible, joint decisions.

Application of the Convention in the public sector

Articles 1 and 2. Protection against acts of anti-union discrimination and interference. The Committee recalls that the Committee on Freedom of Association has referred to it the examination of the legislative aspects of Case No. 2926 regarding allegations of numerous anti-union dismissals in the public sector through the procedure known as the “compulsory purchase of redundancy”. Established by Executive Decree No. 813, this procedure allows public administration, through the payment of compensation, to unilaterally remove public servants without having to indicate the grounds for the termination of the employment relationship. In this regard, the Committee notes that the Government’s report does not contain information on the absence in the Organic Act on the Civil Service (LOSEP), the Organic Act on Public Enterprises (LOEP), the Organic Act on Higher Education (LOES) and the Organic Act on Intercultural Education (LOEI) of specific provisions relating to anti-union discrimination and interference. Under these conditions, the Committee requests the Government to take the necessary measures to ensure that legislation applicable to the public sector contains: (i) provisions which prohibit any acts of anti-union discrimination envisaged in Article 1 of the Convention; (ii) provisions which prohibit any acts of interference envisaged in Article 2 of the Convention; and (iii) provisions which set forth dissuasive penalties where such acts are committed.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee noted that the LOSEP and the LOEP increased, especially in relation to remuneration, the limitations to the right to collective bargaining in the public sector, which had been introduced by Constituent Resolutions Nos 002 and 004, and Executive Decree No. 1406, and that these restrictions were incompatible with the Convention. The Committee notes the Government’s indication that the intention of Constituent Resolutions Nos 002 and 004 is to: (i) regulate, not prohibit, workers’ right to collective bargaining; (ii) ensure respect of the principle of equal pay for work of equal value within public entities; and (iii) eliminate the privileges and abuse that comprise public funds. The Committee notes, however, that the Government’s report does not contain any information on the limitations to the scope of collective bargaining contained in the LOSEP and the LOEP. In this regard, the Committee notes with particular concern section 51(k) of the LOSEP, under which the Ministry of Industrial Relations is empowered to determine, in all public sector bodies subject to that Act, the salary increase percentage and any other benefits which entail expenditure, and the fifth and 14th transitional provisions which prohibit in the public sector, including public enterprises, any expenditure beyond that provided for in the legislation. Recalling that there are mechanisms to allow the protection of the principle of equal remuneration for work of equal value in the public sector and compliance with budgetary availability to be reconciled with the recognition of the right to collective bargaining, the Committee once again requests the Government to take the necessary measures to restore the right to collective bargaining in all areas affecting the living and working conditions of public sector workers enshrined in the Convention, and to report on any developments in this regard.

Determination of the abusive character of clauses in collective agreements in the public sector by the Ministry of Industrial Relations. The Committee recalls that the Committee on Freedom of Association was referred to it with the examination of the legislative aspects of Case No. 2684 (report No. 372, paragraphs 282 and 285 of June 2014) relating to the violation of the right to collective bargaining as a result of empowering the Ministry of Industrial Relations through Ministerial Orders Nos 00080 and 00155 to determine the abusive character of clauses in collective agreements in the public sector. The Committee notes the Government’s indication that: (i) the Ministerial Orders do not restrict collective agreements but regulate them by setting parametres for bargaining; and (ii) the administrative authority is not judge and jury in the revision processes of the collective agreements in the public sector since it provides equal support to employers and workers alike. The Committee recalls that the power to determine the abusive character of clauses in collective agreements in the public sector should fall on the judicial authority and that in order to restore the principle of free and voluntary collective bargaining enshrined in the Convention, the provisions in national law that empower the Ministry of Industrial Relations to determine the abusive character of clauses in collective agreements in the public sector need to be removed, which entails an amendment of Executive Decree No. 225 of 2010. Under these conditions, the Committee once again requests the Government to take the necessary measures so that the determination of the abusive character of clauses in collective agreements in the public sector falls within the competence of the judicial power.

Article 6. Scope of application of the Convention. In its previous comments, the Committee noted that, under the terms of the LOEP, LOSEP, LOES and LOEI, the list of public servants excluded from the right to collective bargaining goes beyond the exclusions allowed by Article 6 of the Convention, which stipulates that public servants engaged in the administration of the State are excluded from the application of the Convention. The Committee notes the Government’s indication that: (i) there is no category in Ecuador for public servants who do not work in the administration of the State; and (ii) the persons set out in section 26 of the LOEP (public servants freely appointed, in general occupying executive, management, trust, representative positions, consultants and career public servants who do not enjoy the right to collective bargaining as they perform functions of trust within the highest levels of public entities and businesses). In this respect, the Committee recalls that, in order to give effect to Article 6 of the Convention, a distinction should be drawn between public servants who by their functions are directly employed in the administration of the State (such as, in some countries, civil servants in government ministries and other comparable bodies, and ancillary staff), who may be excluded from the scope of the Convention, and all other persons employed by the government, public enterprises or autonomous public institutions, who should benefit from the guarantees provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 172). Under these conditions, 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 account of all the comments that it has been making for many years and that, in consultation with the most representative workers’ and employers’ organizations, it will take the necessary measures to amend the provisions of the above laws and regulations, including those contained in the Labour Code that is currently under revision. The Committee trusts that the follow-up mission to the discussion in the Committee on the Application of Standards will be an opportunity to report progress made in this regard.

[The Government is asked to reply in detail to the present comments in 2015.]