Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)

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



A Government representative referred to the earthquake of 16 April 2016 and its serious consequences just before the new President of Ecuador took office on 24 May 2017. He stressed the importance that the Government attached to the ILO and its supervisory bodies as well as to the compliance of ILO international Conventions. He said that it was the intention of the new administration to promote dialogue with the social partners and to seek joint solutions to labour issues through a tripartite approach. In the first place, he considered that serious and urgent cases should focus on situations that were of such a nature, and (serious violations of the human rights of trade unionists or their families), not merely administrative matters, such as those which had led to the discussion of the present case. He reiterated the call made by the group of Latin American and Caribbean countries (GRULAC) for cases to be selected on the basis of objective criteria and transparent procedures. The situation required systematic analysis of the whole applicable legal and institutional structure in a manner which addressed the observations and the recommendations of the Committee of Experts, which had not been seen in its treatment. Turning to the issues raised by the Committee of Experts, first in relation to collective bargaining in the public sector, he said that the Government was in compliance with the indications of the Committee of Experts as it guaranteed the right to organize of public sector workers, which could establish trade unions. As proof that collective bargaining had not been eliminated in the public sector, he noted that the national competent labour authority had concluded 35 collective labour contracts since the publication of the constitutional amendments. Second, with regard to the comments of the Committee of Experts that penalties should not be imposed for participation in strikes, he indicated that the crime of the paralysis of a public service set out in section 346 of the Basic Comprehensive Penal Code did not in any event affect the right of association or of social protest, but was confined to punishing the illegal and illegitimate paralysis of a public service, which was in conformity with paragraph 158 of the 2012 General Survey of the Committee of Experts. There were no penalties in the case of strikes, which was a right of workers, although a sanction did exist in the case of the paralysis of public services, which related to a right of society, in accordance with Article 326.15 of the Constitution. Strikes and peaceful demonstrations, within the context of respect for the rights of citizens, were a worker’s right set out in law, without any infringement of international labour Conventions. Third, with regard to the determination of the minimum services that were acceptable to call a strike, he indicated that the institutions responsible for determining minimum services in the event of disagreement between the parties were in compliance with the indications of the Committee of Experts. The labour inspectorate was an institution which exercised a first level of control over the lawful nature of disputes and immediately took on the role of facilitating the various processes, in agreement between workers and employers. In the case that no agreement was reached, a conciliation and arbitration board would be set up with representatives of workers and employers, to ensure total impartiality and the participation of the parties to the dispute. He added that the determination of an acceptable level of minimum services before a strike was called was necessary to guarantee the normal operation of basic services. The Government would, in any case, examine the possibility of adopting the recommendations of the Committee. Fourth, with regard to compulsory arbitration contained in Article 326.12 of the Constitution and Article 565 of the Labour Code which specified the procedure to follow for the resolution of collective labour conflicts, he considered that recourse to arbitration in collective disputes removed the possibility that matters covered by arbitration would be submitted to the courts, allowed the participation of the parties in the conciliation body and reduced the level of labour conflict. There was no evidence that the removal of arbitration reduced the level of labour conflict or affected further bargaining. Finally, he noted that the procedure of the compulsory purchase of redundancy was regulated, and its application was based on constitutional and legal provisions, and as such did not have the effect of anti-union discrimination.

The Worker members recalled that in 2016 the Committee had discussed the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by Ecuador. With respect to the right to freedom of association, they referred to Case No. 2970 of the Committee on Freedom of Association, in which it was noted that the Government had gradually started dismantling the collective rights of public sector workers. An ILO technical mission had visited Ecuador in January 2015 and issued a number of recommendations, including on the right of public sector workers to establish trade unions of their own choosing. However, since then the situation had become worse. The Committee of Experts had repeatedly expressed concern over the limitations on the right of workers to establish organizations of their own choosing without previous authorization by state bodies. Regrettably, the Government had failed to amend Article 326(9) of the Constitution, which provided that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization. Moreover, despite numerous requests by the ILO supervisory bodies and the 2015 ILO technical mission, the Government had continued to refuse the registration of the National Federation of Education Workers (UNE). The UNE had applied for registration in January and July 2016. However, both applications had been refused. On 18 August 2016, the Government had ordered the dissolution of the union and the confiscation of its assets. This decision had drawn heavy criticism from the special procedures of the United Nations Human Rights Council. Referring to the comments of the Committee of Experts, the Worker members called on the Government to take measures to immediately register the UNE and review its legislation in order to prevent the administrative dissolution of trade unions for expressing views on economic and social policy. The anti-union climate in the public sector was further aggravated by prison sentences imposed on workers in the public sector who engaged in peaceful strike action under section 346 of the Basic Comprehensive Penal Code. The restrictions on the right to freedom of association were sadly not limited to the public sector. The national legislation imposed excessive requirements with respect to the minimum number of workers required for the establishment of workers’ organizations in the private sector. A legal provision introduced in 1985 had increased the minimum number of workers required to establish a union from 15 to 30. Most enterprises in Ecuador had fewer than 30 workers. The Government justified this provision by arguing that the minimum number of workers required to establish unions was kept high intentionally in order to ensure the representative nature of enterprise committees. While this might be a legitimate consideration when it came to the recognition of trade unions for collective bargaining, it was not an acceptable argument in relation to the establishment of trade unions. Furthermore, strict compulsory time limits on the convening of trade union elections infringed the right of workers to determine the rules governing the administration and elections of their unions. Trade union elections were an internal matter and needed to be regulated through union statutes. Thus, the compulsory time limits set by law constituted a violation of the Convention. In addition, workers who were not union members continued to be granted the right to stand for election as officers of enterprise committees under section 459(3) of the Labour Code. The Worker members stressed that the rules governing the election of Worker representatives should be set by the committees themselves and should not be imposed by law. This issue had still not been addressed by the Government despite repeated calls by the ILO supervisory bodies. The Worker members were deeply troubled by the lack of compliance with the Convention and the specific recommendations of the Committee of Experts. The Government was therefore urged to give serious consideration to the issues that had been raised on numerous occasions and to engage in tripartite dialogue at the national level.

The Employer members recalled, first, that they disagreed with the position of the Committee of Experts on Convention No. 87 and the right to strike. They added that the statement made by the Government group in March 2015 indicated that: “The scope and conditions of this right are regulated at the national level.” They also expressed concern at the present case, in view of the number of times that it had been considered and that it involved a fundamental Convention. With regard to the application of the Convention in the public sector, they considered it dangerous for the Government to claim that the purpose of Article 326(9) of the Constitution was to avoid the disorderly proliferation of workers’ organizations since, according to the Committee of Experts, this position ran counter to Article 2 of the Convention. Trade union unity imposed by law, whether directly or indirectly, was in violation of the principles of freedom of association. Although such unity was desirable, it was a matter to be decided by the trade unions themselves using the methods they considered most fitting. However, it should also be borne in mind that Article 326(7) of the Constitution guaranteed the right and freedom of workers to establish trade unions, federations, associations and other forms of organization. More information was needed from the Government to understand exactly whether public sector workers in Ecuador enjoyed that constitutional guarantee in practice and established trade unions without any restriction. With regard to Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015, which introduced the option of administrative dissolution for certain professional associations of public servants, they shared the view of the Committee of Experts. They agreed that the professional nature of such associations gave them the character of trade unions that was needed to enjoy protection under Convention No. 87, and that the above provision was in violation of Article 4 of the Convention. With regard to the observations of the Committee of Experts concerning the Basic Comprehensive Penal Code, the Employer members had decided not to comment on the issue in view of the reservation expressed at the beginning of their statement. With regard to the application of the Convention in the private sector, they recalled that the Committee of Experts took as its starting point the principle that workers should be free to establish the organizations of their own choosing and that the requirement for a reasonable level of representativity to sign collective agreements was not in contradiction with the ILO Conventions on freedom of association. With regard to the recommendation of the Committee of Experts to review the legal provisions concerning one of the institutions of collective labour law, they considered that the Government and the social partners should be called on to engage in social dialogue with a view to undertaking a comprehensive revision of all the elements of collective labour law. Bearing in mind that amending one provision in isolation always had repercussions on the others, the reform should be comprehensive so as to avoid creating a dysfunctional system. With regard to the deadlines for calling trade union elections, they shared the concern expressed by the Committee of Experts that elections were an internal matter for the organizations concerned and should be governed by their by-laws, and the Government should provide more information on the application of this provision in practice. They also shared the concern of the Committee of Expert at the violation of the principle of the independence of workers, as contained in Article 459(3) of the Labour Code, as only workers affiliated to a workers’ organization were entitled to decide on its governance structure. Finally, they emphasized that the Government and the social partners should undertake a comprehensive revision to ensure that the legal system was internally consistent, and should avoid isolated reforms that could result in contradictions with or violations of other international treaties.

The Worker member of Ecuador emphasized that the Government had maintained a firm and radical position on the right to freedom of association of workers, allowing them to establish associations, trade unions and federations. However, he recalled that those rights carried with them obligations and that in order to defend labour rights it was necessary to follow legal procedures. With regard to the UNE, he said that its members were public servants protected by the Basic Act on the Public Service and the Basic Act on Education and Intercultural Issues, but that they were not protected by the Labour Code. He recalled that the UNE had been founded in 1950 by agreement with the Ministry of Education and that, as such, if its members considered that their rights had been violated, they should take the appropriate legal action. He added that UNE members enjoyed the right to freedom of organization, in accordance with Article 326(7) of the Constitution of Ecuador. Lastly, he recalled that Ecuador had ratified 61 ILO Conventions, and invited the UNE to initiate dialogue with the new Government to resolve the current situation.

The Employer member of Ecuador recalled that freedom of association for workers, whether in the public or private sector, included the right to establish organizations of any kind, and that workers’ organizations could only be dissolved by the will of their members. The Act governing the establishment of workers’ organizations distinguished between the various types of organization and the minimum requirements for their establishment, with the aim of meeting the representativity requirement. In his opinion, freedom of association was not restricted by the fact of a country’s internal legislation imposing requirements to guarantee a minimum level of representativity. He considered that the Committee of Experts was using a mistaken premise when it said that “the requirement of a minimum number of 30 members to establish enterprise unions in countries in which the economy is characterized by the prevalence of small enterprises hinders the freedom to establish trade unions.” In Ecuador there were 5,860 workers’ organizations, 72 per cent of which were in the private sector. Over the past decade, 83 organizations had been established every year, while in the preceding 68 years, the figure had barely reached 31. He emphasized that the root cause of the problem of unionization lay outside the formal economy. Any observation relating to freedom of association should be discussed with interest groups and in the general report of the collective bargaining institution, with a view to identifying its effects objectively and rationally, as recommending a change without consultation would seriously affect job creation and threaten the sustainability of the formal sector.

The Government member of Malta, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Bosnia and Herzegovina, Montenegro and Norway, said that the EU attached great importance to human rights, including freedom of association and trade union rights, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The EU was actively engaged in promoting the universal ratification and implementation of the core labour standards, as part of its Action Plan on Human Rights, adopted in July 2015. The recent accession of Ecuador to the EU trade agreement with Colombia and Peru was welcomed. It was recalled that this agreement included commitments to effectively implement the fundamental ILO Conventions. He expressed concern at the allegations made by the trade unions reporting police violence in the context of a peaceful demonstration following the adoption on 3 December 2015 of amendments to the national Constitution, and the arbitrary detention of several persons, including the President of the Confederation of Workers of Ecuador, Mr Edgar Sarango. Referring to the comments of the Committee of Experts, three points should be highlighted: (i) the impossibility of establishing more than one trade union in state bodies; (ii) the fact that associations of public servants were subject to administrative dissolution or suspension; and (iii) the imposition of penal sanctions on workers participating in a peaceful strike. With respect to the first point, the Government was urged to ensure that the new provisions of the Bill to amend the legislation governing the public sector would fully respect the right of public servants to establish organizations of their own choosing for the collective defence of their interests. Second, the Government was urged to amend the legislation and to take the necessary measures to ensure that occupational associations of public servants were not subject to dissolution, which prevented them from fully exercising their mandate of defending their members’ interests. The EU also called on the Government to revoke its decision to dissolve the UNE in order to allow it to immediately exercise its activities. Third, as to the imposition of penal sanctions on workers participating in a peaceful strike, the Government was urged to amend the provisions of the Basic Comprehensive Penal Code commented on by the Committee of Experts so as to bring it into conformity with the Convention. In relation to freedom of association in the private sector, the EU called on the Government to take the following measures, as requested by the Committee of Experts: (i) amend the Labour Code to reduce the minimum number of members required to establish workers’ associations and enterprise committees; (ii) amend Ministerial Decision No. 0130 of 2013 to ensure that the consequences of any delay in convening trade union elections were set out in the by-laws of the organizations themselves; and (iii) with regard to the election of workers as officers of the enterprise committee who were not trade union members, amend the Labour Code in order to bring it into compliance with the principle of trade union autonomy. It was also suggested that the Government facilitate the organization of trade unions at the sectoral level. In conclusion, the EU called on the Government to avail itself of the ILO’s expertise and to comply with its standards-related obligations.

The Government member of Panama, speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), thanked the Government for the information it had provided on the application of the Convention and highlighted the commitment to the ILO’s supervisory system expressed by the current Government, which had taken office on 24 May 2017, as well as its call to the social partners to engage in dialogue. The Government’s replies had clarified issues on which the Committee of Experts had requested further details. In that regard, the Government had indicated that, by virtue of the amendment to Article 229 of the Constitution and the reform of Article 247 of the Labour Code, the right to freedom of association for workers in the public sector was guaranteed. Similarly, Ecuador had shown that collective bargaining had not been eliminated in the public sector, as demonstrated by the 35 collective agreements signed between public sector employers and workers since the Constitutional amendment had been published in December 2015. With regard to the comments of the Committee of Experts that penalties should not be imposed on those who participated in peaceful strikes, the Government had clarified that such a situation would only occur if there was an illegal and illegitimate interruption of a public service that fell outside the relevant procedures for the exercise of the right to strike. Among the progress that Ecuador had made in labour matters, emphasis should be placed on the Labour Justice Act, which had entered into force on 20 April 2015, and included concepts such as unjust dismissal to protect trade union leaders carrying out their activities as representatives of workers’ organizations. He reiterated GRULAC’s call to the Committee of Experts to select cases for discussion by the Conference Committee using objective and transparent mechanisms that took into account the severity of the facts and to ensure that their recommendations were clear, concise and, above all, achievable.

An observer representing Education International (EI) expressed regret at having to appear before the Committee once again to describe the systematic violation of the trade union rights of UNE and the process of its destruction by the Government. She claimed that the Government had: (i) revoked UNE’s right to check off union dues in 2009, and had still not restored that right despite calls from the ILO; (ii) denied registration of the new UNE board, despite it having met all the necessary requirements; (iii) proceeded, on the basis of Executive Decree No. 739 of 12 August 2015, to the administrative dissolution of UNE, in violation of Article 4 of Convention No. 87; (iv) closed offices and requisitioned two of UNE’s main buildings in Quito and Guayaquil, with the intervention of the national police; and (v) liquidated assets that had belonged to UNE for 73 years, initiating the sale of various buildings. She added that the Government had created, financed and promoted a different organization, known as the Teachers’ Network, which was the only organization of primary school teachers in the country recognized by the Government as being representative, despite the fact that it was presented abroad as merely an educational organization. In recent years, the Government had dismissed more than 20 union officials because of their union activities, the most recent cases being those of Juan Cervantes, national Vice-President (August 2016) and Glenda Soriano, President of UNE in Guayas (March 2017). She requested the Committee to appoint a high-level tripartite mission to verify the information provided and to urge the Government to restore the long list of UNE rights that had been violated, including its right to administer the pension fund. She emphasized that dialogue was the best way of resolving disputes and finding lasting solutions, and she hoped that the route of dialogue would avoid another appearance before the Committee the following year.

The Government member of Cuba agreed with the statement by GRULAC. She recalled the social progress made in Ecuador, as reflected in the reduction of poverty, the inclusion of vulnerable groups in national life and support for girls, adolescents and women. She indicated that labour issues in Ecuador focused on the eradication of the worst forms of child labour and the establishment of social security for women performing unpaid work in the home and those in domestic work. She emphasized that the Government had repeated its call to the social partners to initiate a social dialogue, and that it was necessary to grant the new Government time to resolve the issues raised.

An observer representing Public Services International (PSI) said that he was also speaking on behalf of 11 trade union federations and two trade union confederations in the public sector, which were affiliated with PSI in Ecuador, and on behalf of the United Workers’ Front (FUT) and eight allied organizations from the public sector, which represented workers in universities, the legislative body, the electricity sector and firefighters. He regretted that all of these organizations had been adversely affected by the labour counter-reform in the public sector, which had been carried out by the Government over the preceding ten years. He emphasized that violations of Articles 2, 3 and 4 of the Convention were systematic in Ecuador, and had become the policy of the previous Government. The Government had interfered in trade union organizations through threats, dissolution and the imposition of conditions on their action plans, as noted by the Committee of Experts on various occasions. Furthermore, in October 2008, an administrative and unilateral review of all public sector collective agreements had been initiated, on the pretext of removing clauses that were considered privileges, with no possibility of recourse, and no referral to the courts. Nevertheless, he expressed his willingness to pursue a process of dialogue with the Government of Ecuador, which would include workers from all sectors in Ecuador, with emphasis on public employment, and with ILO assistance, which would be binding in nature. He urged the Government to accept an ILO tripartite mission as the beginning of a new stage of dialogue.

The Worker member of Colombia expressed concern at the complaint submitted to the Credentials Committee of the International Labour Conference by six national trade union confederations because they had not been taken into account with a view to participation in the Conference. He emphasized that Governments needed to comply with ILO Conventions, irrespective of their political views. He considered that Article 326(9) of the Constitution of Ecuador was contrary to trade union pluralism and recalled that the Committee of Experts had urged the Government to take the necessary measures immediately to ensure that, in accordance with Article 2 of the Convention, the legislation fully respected the right of public servants to freely establish organizations of their own choosing. He added that the legislative reform of 1985, which had increased the minimum number of workers required to establish a trade union from 15 to 30, had resulted in a decrease in the number of trade unions. Lastly, he considered it necessary to request the ILO to carry out a tripartite mission.

The Government member of Switzerland indicated that her country supported the statement made by the European Union. She emphasized that the independence and freedom of the social partners were essential to achieve effective social dialogue and to contribute to economic and social development, in both the public and private sectors. Expressing concern about the restrictive rules governing social dialogue and the interference of the State in the affairs of the social partners, she encouraged the Government to follow the recommendations of the Committee with a view to guaranteeing freedom of association, in both law and in practice.

The Government member of Nicaragua endorsed the GRULAC statement and thanked the Government for the information provided, which had clarified some matters on which the Committee of Experts had requested further details. In that regard, he recalled that the Government had replied to the comments and observations of the Committee of Experts on various occasions but that, even so, its replies had not been taken duly into account. For example, questions were being asked about the fact that, under Ecuadorian legislation, a minimum of 30 people was required to establish a trade union, when in other countries, the minimum required was higher. At the same time, the fact that the current Government had taken office only recently meant that it should be given time to assess the labour situation in the country. In that regard, he welcomed and reiterated the Government’s call to the social partners to engage in tripartite dialogue.

An observer representing the Confederation of Workers of Universities of the Americas (CONTUA), also speaking on behalf of PSI, while highlighting the awkwardness of raising difficult political issues against a Government with which it shared many objectives, said that nothing could justify failure to comply with international labour standards, which were the basis of labour rights. There were serious problems in Ecuador regarding collective labour relations, including explicit interference, specifically coordinated by the Government, with trade unions through laws, intimidation and anti-union discrimination which aimed primarily at undermining independent trade unionism. These policies had resulted in the imposition of penalties and dismissals, particularly on public sector trade union leaders, the almost complete eradication of public sector collective bargaining, and the extremely serious situation of UNE. Despite that critical situation, the arrival of a new Government in Ecuador could be a positive sign. The Government was therefore called on to be open to dialogue and a tripartite mission. He noted the forthcoming visit to Ecuador of the PSI General-Secretary, Rosa Pavanelli, from 16 to 22 June, to meet the Ecuadorian authorities at the highest level and support affiliated trade unions and professional organizations, with a view to restoring rights.

The Government member of the Plurinational State of Bolivia endorsed the GRULAC statement. He emphasized that both the Constitution and the national legislation fully guaranteed the right to freedom of association and suggested that the Committee of Experts should be more meticulous and exhaustive in its methods of work, especially when it questioned the content of constitutional provisions. With regard to Article 346 of the Basic Comprehensive Penal Code, he considered that this provision did not imply the criminalization of strikes, but of violent acts that interrupted public services. The provision should be interpreted in the light of the principle of last resort, and in accordance with human rights instruments, as required by sections 3 and 13.1 of the Penal Code. With regard to the dissolution of trade union organizations, he said that, by law, dissolution could only be requested by the members of trade union organizations, and not by the State or employers. He considered that an erroneous interpretation of the Convention that did not allow for any margin of discretion or regulation by the legislative bodies with respect to the exercise of freedom of association, did not contribute to social dialogue, and could damage trade unions themselves. He highlighted the Government’s efforts to safeguard the right of citizens to have access to public services without any hindrance, and considered that an appropriate balance had been struck in Ecuador’s current legislation. Lastly, he said that the increase in the number of registered trade union organizations demonstrated the Government’s commitment to freedom of association.

The Worker member of Italy, also speaking on behalf of the Worker members of Austria, Belgium, Honduras and the United States, drew the Committee’s attention to specific violations of the application of the Convention regarding banana workers in Ecuador. The banana sector was central to Ecuador’s economy. However, the banana plantation structure was characterized by a large number of small (0–30 hectares) and medium-sized (30–100 hectares) producers, as approximately 79 per cent of all producers nationwide had farms that did not exceed 30 hectares and in many of them, the number of workers was under 30. Even in larger farms with more than 30 workers, many workers were often not employed directly by the farm, but had been subcontracted to undertake specific tasks such as packaging or fumigation. It was clear that this practice of subcontracting or limiting the number of employees to fewer than 30 was an elusive measure to prevent workers from attaining the legal number for the creation of a union. Despite the comments of the Committee of Experts, gross violations of freedom of association continued and the national legislation remained unchanged. Given the very specific structure of the Ecuadorian economy, the prerequisite of 30 workers to create a union was far too high and consistently denied freedom of association to hundreds of thousands of workers. The Government was therefore urged, in consultation with the social partners, to take the necessary measures to amend the Labour Code, and particularly sections 443, 452 and 459, to reduce the minimum number of members required to establish workers’ associations and enterprise committees. The Government was also requested to set up an independent inquiry regarding the high number of anti-union actions relating to the establishment of trade unions at the company level and to undertake remedial action without delay, including in relation to the application to register trade unions. Without any further delay, the Government needed to apply the ILO Conventions it had ratified and the international rules to which it had subscribed.

The Government member of the Bolivarian Republic of Venezuela expressed agreement with the GRULAC statement and took note of the updated information provided by the Government, which demonstrated its commitment to the ILO supervisory system. He welcomed the Government’s willingness to engage in dialogue with the social partners and recalled that, under Article 8 of the Convention, in exercising the rights provided for in the Convention, workers and employers and their respective organizations, like other persons or organized collectivities, should respect the law of the land. He welcomed the Government’s invitation to engage in dialogue and expressed his conviction that, by that means, solutions would be reached on the basis of tripartite agreement. Lastly, he expressed the hope that the Committee’s conclusions resulting from the debate would be objective and balanced, which would enable the Government to consider and assess them within the framework of the Convention.

The Government member of Canada indicated that her Government placed great importance on Convention No. 87 and strongly encouraged all member States to respect its provisions. In its comments, the Committee of Experts had noted a number of issues in Ecuador in relation to the application of the Convention. Moreover, in 2015 the ILO had made several recommendations following an expert mission to the country. Among these recommendations, the mission had urged the Government to register a new executive board for the UNE. The UNE had repeatedly tried to register its new board on several occasions without success. She was also concerned at the use of Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015, to dissolve the UNE in August 2016, and that in March 2017, these Decrees were presented in draft legislation to the National Assembly to allow for greater state powers to dissolve non-governmental organizations. The Government was encouraged to ensure that any new legislation operated in conformity with the Convention to guarantee freedom of association and the right to organize.

The Government representative thanked all those who had participated in the discussion. Firstly, with regard to trade union organizations of public sector workers, he referred to the Basic Act to reform the legislation governing the public sector, published on 19 May 2017. The Act guaranteed the right to equality, freedom of association and to strike, and consequently addressed one of the concerns raised by the Workers. Second, with regard to unions in the private sector, he indicated that the issue of the minimum number and the extension of the time limits for the process of changing trade union executive bodies would be analysed taking into account the concepts of full employment, inadequate employment and the social capital of undertakings, in addition to the numerical and time requirements in each case. Third, with reference to the issue of the UNE, he said that the necessary administrative measures would be assessed so that the dispute with the Ministry of Education was addressed appropriately, although noting that the Ministry of Labour did not have a register, and had not initiated regularization or re-establishment procedures. Fourth, he called on all workers and employers to engage in a constant process for the reinforcement of tripartite dialogue. For that purpose, a national meeting would be convened with a view to designing, formulating, agreeing upon and implementing a minimum agenda of social dialogue, together with its tools, time limits and content. He hoped that, in exchange, the workers and employers would issue a formal statement on this subject. The Government would request the ILO to participate in the launching of technical labour round tables, and in the design of tripartite training programmes for the application of Conventions. Finally, he indicated that, from the moment that Ecuador became aware of its inclusion in the list of countries with double footnoted cases, at least five consultation meetings had been held at various levels with ILO officials, including meetings with Employer and Worker representatives at the Conference, with whom initial constructive contacts had been established.

The Employer members thanked the Government for the information provided. They recognized the efforts that the new Government was making, having taken up the reins of public administration only recently, but recalled that this circumstance was not an excuse for failing to comply with the country’s commitments to the ILO. They considered that there were areas in which the Government could still provide further information on the application of the Convention in practice: specifically, the possibility for public sector workers to establish one or more workers’ organizations in each administrative department at their own free will, as provided for in Article 326(7) of the Constitution and as developed in recent legislation adopted in May 2017. They urged the Government to provide a detailed report on that subject by 1 September 2017. They agreed that some labour standards should be reviewed, but on the basis of a comprehensive approach, without affecting the collective institutions established in labour law. This should be undertaken within the framework of social dialogue, through due consultation with the National Wage and Labour Council, on the basis of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). They concluded by recalling that the conclusions in the case should only cover those subjects on which there was agreement.

The Worker members sincerely hoped that the recent election in Ecuador would mark a turning point and the start of a full and frank dialogue with the country’s social partners in order to achieve progress towards a number of serious and long-standing issues. The commitment expressed by the Government to start a process of consultation with the trade unions concerned in order to address the issues raised by the Committee was welcomed. Workers should not be obliged to join an organization established by law. Workers, both in the public and private sector, must have the right to freely pursue their collective interests. Moreover, the dissolution of the UNE was deeply troubling. The Worker members urged the Government to register the UNE without further delay, and to take the necessary measures to prevent the dissolution of workers’ organizations for expressing their views on broader social and economic policies. Furthermore, section 346 of the Basic Comprehensive Penal Code should be amended and the Government was urged to refrain from criminally prosecuting peaceful participation in strikes. No worker should have to face criminal charges and penalties unless he or she committed violence or engaged in other serious violations of penal law. In addition, a number of laws in the country created enormous obstacles to the free functioning of trade unions in the private sector. In this regard, the Government should review and amend sections 443, 452 and 459 of the Labour Code and lower the minimum requirement to a reasonable number in consultation with the social partners. Questions relating to the internal rules and administration of trade unions should be left to workers and should not be set by law. The compulsory time limits for the election of trade union officials under section 10(c) of Ministerial Decision No. 0130 of 2013 and the election of non-union members as workers’ representatives in enterprise committees under section 459(3) of the Labour Code required the close attention of the Government. Those provisions must be amended to be brought into line with the Convention. The Worker members expressed their disappointment at the lack of progress on those issues. Constructive social dialogue required the recognition of independent trade unions in all sectors of the economy. The Government was therefore urged to bring its law and practice into line with the Convention without any further delay.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

Taking into account the expressed views, the Committee called upon the Government of Ecuador to:

- ensure full respect for the right of public servants to establish organizations of their own choosing for the collective defence of their interests, including the protection regarding administrative dissolution or suspension;

- revoke the decision to dissolve the UNE and to allow the free functioning of the trade union;

- amend legislation to ensure that the consequences of any delay in convening trade union elections are set out in the by-laws of the organizations themselves;

- initiate a process of consultation with the most representative employers’ and workers’ organizations to identify how the current legislative framework needs to be amended in order to bring all the relevant legislation into compliance with the text of Convention No. 87.

The Committee invited the Government to consider availing itself of ILO technical assistance in relation to the legal reform process. The Committee invited the Government to report progress in relation to the abovementioned recommendations to the Committee of Experts in 2017.