Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the joint observations of the National Federation of Education Workers (UNE) and Public Services International in Ecuador (PSI–Ecuador), received on 1 September 2017, which refer to matters examined by the Committee and also to allegations of violations of the Convention in practice, relating in particular to the refusal to register a number of trade union organizations. The Committee requests the Government to send its comments on the aforementioned allegations.

The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2017, which refer to matters examined by the Committee in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (the Conference Committee) in June 2017 on the application of the Convention by Ecuador. The Committee notes in particular that the Conference Committee asked the Government to: (i) 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; (ii) revoke the decision to dissolve the UNE and to allow the free functioning of the trade union; (iii) 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; and (iv) 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. In this respect, the Committee welcomes that the Government has agreed with the Office on the provision of technical assistance in the context of the legislative reforms under way.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Impossibility of establishing more than one trade union in state bodies. In its previous comments, referring to article 326(9) of the Constitution, which provides that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization, and to a proposed reform of the Basic Act to implement that provision of the Constitution, the Committee asked the Government to take the necessary measures immediately to ensure that both the Constitution and the legislation preserve the possibility of trade union pluralism in state institutions. In this regard, the Committee notes that the Government refers to the adoption on 19 May 2017 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act). The Committee notes the Government’s specific indications that: (i) the Basic Reform Act guarantees without restriction public servants’ right to organize and the possibility of establishing more than one trade union in public sector institutions; (ii) the Basic Reform Act establishes the concept of the “committee of public servants” (CSP); and (iii) the purpose of introducing this concept is to guarantee certain prerogatives to the most representative organization of public servants in every public institution, without in any way restricting the possible co-existence of several trade unions in the public sector. The Committee also notes the joint observations of the PSI–Ecuador and the UNE maintaining that creating or establishing the CSP, which must comprise at least “50 per cent plus one” of public servants in a given institution, violates the provisions of the Convention.

With regard to the concept of the CSP, the Committee notes that section 11 of the Basic Reform Act adopted in May 2017 follows the guidelines of the Bill examined by the Committee in its last comment. In this respect, the Committee observes that: (i) the CSP displays all the characteristics of a workers’ organization, with its membership, constitution and executive committee; (ii) the CSP has all the powers to promote and defend the collective interests of public servants recognized by law (especially the right to monitor the observance of labour law, the right to social dialogue and the right to strike); (iii) even though the Basic Reform Act recognizes in general terms and without restrictions the right of public servants to establish trade unions, the Act does not explicitly envisage or regulate alternative forms of organization to the CSP whereby public servants could defend their collective interests and exercise the aforementioned collective rights; and (iv) in being obliged to comprise at least “50 per cent plus one” of public servants, there can only be one CSP for each public institution. The Committee observes that it can be concluded from the above that even though section 11 of the Basic Reform Act does not prohibit the possibility of establishing several trade unions at the same public institution, it does envisage and regulate the exercise of various collective rights of public servants only by the CSP, since there can only be one such body in a public institution in view of its obligation to comprise “50 per cent plus one” of the staff.

The Committee recalls that under the terms of Article 2 of the Convention, trade union pluralism must be possible in all cases. In this regard, the Committee reminds the Government that workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the prohibition of other trade unions which workers would like to join, or in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not therefore have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means of defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), of organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 97). The Committee therefore requests the Government to provide additional information on the manner in which organizations of public servants other than CSP are able to represent and defend the interests of their members vis-à-vis the authorities.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015). In its previous comments, the Committee observed that Executive Decrees Nos 16 and 739 envisaged broad grounds for the administrative dissolution of social organizations and that the aforementioned Decrees applied to associations of public servants not registered at the Ministry of Labour but at their respective ministries. The Committee urged the Government to adopt the necessary reforms so that occupational associations of public servants are not subject to grounds for dissolution which prevent them from exercising in full their mandate of defending their members’ interests, and are not subject to administrative dissolution or suspension.

The Committee welcomes the Government’s indication that Executive Decrees Nos 16 and 739 have been repealed by Decree No. 193 of 24 October 2017. The Committee observes that even though the purpose of the new Decree is to reduce to a minimum any superfluous administrative requirements for social organizations and to reduce the grounds for dissolution, the Committee notes that the new Decree retains engagement in party-political activities as grounds for dissolution and that the new Decree continues to provide for administrative dissolution. Recalling once again that the defence of the interests of their members requires associations of public servants to be able to express their views on the Government’s economic and social policy, and that Article 4 of the Convention prohibits the administrative suspension or dissolution thereof, the Committee requests the Government to take the necessary steps to ensure that the rules referred to in Decree No. 193 do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the UNE. In its previous comments, the Committee expressed its deep concern at the administrative dissolution of the UNE and urged the Government to take all necessary steps as a matter of urgency to revoke that decision so that the UNE can immediately resume its activities. The Committee notes the Government’s indication that, as part of the commitment to dialogue which is a hallmark of the new Government, contacts have been established between the Ministry of Labour and the UNE lawyer to explore alternatives to the dissolution and liquidation of the UNE. As a result of these contacts, the Government has concluded that: (i) the UNE is not a trade union since it was never registered with the Ministry of Labour; (ii) the competent authority for revoking the administrative act of dissolution and liquidation is the Ministry of Education; (iii) the UNE challenged the legality of the aforementioned administrative act in the Administrative Court of the city of Quito; consequently, in view of the separation of powers, the corresponding judicial ruling must be awaited; and (iv) the Ministry of Labour invited the UNE to initiate the administrative procedure for trade union registration with the Ministry of Labour. The Committee emphasizes once again that, beyond their formal title, associations of workers, including public or private teachers, which have the purpose of defending the occupational interests of their members are covered by the provisions of the Convention, and also that the obligation to comply with the Convention is not limited to the Ministry of Labour but extends to all authorities and institutions in the country. The Committee also recalls once again that the administrative dissolution of organizations of workers, including teachers, constitutes a serious violation of the Convention. Encouraged by the initiation of dialogue between the Government and the UNE and by the repeal of Decree No. 16, which constituted one of the legal bases for the dissolution of the UNE and for the revocation of the dissolution of several social organizations, the Committee expects that the Government will soon be in a position to report the revocation of the dissolution of the UNE so that this organization can immediately resume its activities to defend the occupational interests of its members.

Application of the Convention in the private sector

Article 2. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee recalls that since the legislative reform of 1985, which increased the minimum number of members required from 15 to 30, it has been asking the Government to reduce the minimum number of workers required by law to establish workers’ associations or enterprise committees. The Committee also observes that the Committee on Freedom of Association (CFA) referred the follow-up of the legislative aspects of Case No. 3148 to it (see 381st Report, March 2017, paragraph 442). In this case, regarding the impossibility for a sectoral trade union in the banana sector to secure its registration for having members working at several enterprises, the CFA noted the Government’s indication that the establishment of a trade union comprising workers from several enterprises conflicted with section 449 of the Labour Code, which provides that the officers of workers’ associations of any kind must be workers of the enterprise concerned. On the basis of the above, the CFA asked the Government to take the necessary steps not only to reduce the minimum number of members required to establish an enterprise union but also to make it possible to establish primary-level unions comprising workers from several enterprises. The Committee notes the Government’s indication that the purpose of setting a minimum number of members is to establish the representative status of trade unions and that the possibility of considering the recommendation of the Committee of Experts will be examined in the context of the current legal reform process. The Committee recalls once again that the requirement of a reasonable level of representativeness for concluding collective agreements must not be confused with the conditions required for the establishment of trade union organizations. The Committee also recalls that, under the terms of Articles 2 and 3 of the Convention, workers must have the possibility, if they so wish, to establish primary-level organizations at a level higher than the enterprise. The Committee expects that the legal reform process under way will contribute towards the amendment of sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises.

Article 3. Compulsory time limits for convening trade union elections. In its previous comments, taking account of observations from various trade union organizations alleging a violation of trade union autonomy, the Committee asked the Government to provide information on the application in practice of section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their mandate, as set out in their respective union constitutions. The Committee notes the Government’s indication that: (i) the purpose of Ministerial Decision No. 0130 is to give effect to article 326.8 of the Constitution; (ii) the trade unions are requesting that the standards of civil or company law be used which provide that officers shall remain in office until they are legally replaced; and (iii) the Ministry of Labour, in conjunction with the National Assembly, is instigating the preparation of a new Basic Code of Labour and Employment Promotion which will include a legislative proposal relating to this matter. The Committee expects that the new legislation to be adopted will provide that, subject to the observance of democratic rules, the consequences of any delay in holding elections shall be determined by the union constitutions themselves.

Election as officers of enterprise committees of workers who are not trade union members. In its previous comment, the Committee considered that the imposition by law that workers who are not union members may stand for election as officers of the enterprise committee is contrary to the trade union autonomy recognized by Article 3 of the Convention, and it asked the Government to take the necessary measures to amend section 459(3) of the Labour Code. The Committee notes the Government’s indication that the purpose of the legislation in force is to ensure the democratic election of the officers of the enterprise committee but that the point raised by the Committee will be examined in the context of the current legal reform process. Observing that the new Basic Reform Act provides that only members of the “committee of public servants” may become its officers, the Committee expects that the Government will take the necessary steps to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may only stand for office if the enterprise committee’s own constitution envisages that possibility.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee urged the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for any person who obstructs or stops the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. In this regard, the Committee notes the Government’s indication that: (i) the criminal law definition established by section 346 of the COIP is indeed not limited to acts of violence but covers all acts that have the effect of obstructing or stopping the normal provision of a public service, thereby protecting the general interest; (ii) however, it is not the purpose of the aforementioned provision of the COIP to penalize the legitimate exercise of the right to strike; and (iii) the national legislation establishes requirements for calling a strike in the public sector, with a prohibition on the deprivation of fundamental services, including health care, education and energy.

The Committee reiterates that, even though certain restrictions on the right to strike are acceptable to protect the basic interests of the community, criminal penalties should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of criminal law have been committed (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property) (see the 2012 General Survey on the fundamental Conventions, paragraph 158). In this regard, the Committee also emphasizes that a broad criminal law definition imposing imprisonment for any obstruction of the normal provision of a public service, combined with uncertainty over the legality of a strike, may have an excessively deterrent effect on the legitimate exercise of collective rights. In the light of the above, the Committee urges the Government once again to take the necessary steps to amend section 346 of the COIP as indicated, and to provide information on all progress made in this respect.

Recalling that the Government has agreed with the Office on the provision of technical assistance, the Committee expects that the Government will very soon be in a position to report the adoption of legislative provisions that take account of the comments that the Committee has been making for a number of years regarding both the public and private sectors.

The Committee is raising other matters in a request addressed directly to the Government.