Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the joint observations of Public Services International in Ecuador (PSI–Ecuador) and the National Federation of Education Workers (UNE), received on 31 August 2018, which refer to issues examined in the context of the present comment and to specific allegations of anti-union discrimination in the public and private sectors. The Committee notes that these observations also refer to matters relating to the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which will therefore be taken into consideration during the next examination of the application of that Convention by the Committee. The Committee requests the Government to send its comments on the aforementioned allegations of anti-union discrimination and also on those contained in the 2016 observations of the UNE and PSI–Ecuador. The Committee urges the Government to send its comments on the specific allegations of anti-union dismissals at an enterprise in the banana industry contained in the 2014 observations of the International Trade Union Confederation (ITUC).

Application of the Convention in the public sector

Articles 1, 2 and 6 of the Convention. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, after noting with interest that the Basic Act reforming the laws regulating the public service (Basic Reform Act) contains various provisions providing protection against acts of anti-union discrimination and interference, including with regard to the “compulsory purchase of redundancy” mechanism, the Committee asked the Government to provide information on the penalties and compensation applicable to the aforementioned acts and on the scope of application of some of these provisions. The Committee notes that the Government reports the adoption of Ministerial Order No. MDT-2018-0010 regulating the exercise of public servants’ right to organize. The Committee notes in this regard that: (i) the fourth general provision of the aforementioned Ministerial Order provides that any act that seeks to hamper, restrict or undermine the right to organize shall be grounds for dismissal of the person committing the act; and (ii) section 15 regarding violations of the right to organize provides that any public servant or committee of public servants can obtain protection of the right to organize from the competent jurisdiction. However, the Committee observes that: (i) the definition of a violation of the right to organize laid down by the aforementioned provision is limited to acts of interference and therefore appears narrower in scope than the relevant provisions of the Basic Reform Act, which prohibit both anti-union interference and discrimination; and (ii) with the limited exception of the fourth general provision, which is only concerned with penalties applicable to persons carrying out certain anti-union acts, the Ministerial Order does not determine the other penalties and compensation applicable in cases of anti-union discrimination or interference. Recalling once again the importance of having effective and dissuasive penalties in this respect, the Committee requests the Government to provide information on the penalties and compensation applicable to acts of anti-union discrimination and interference committed in the public sector, indicating the legislative or regulatory provisions that establish them. The Committee also once again requests the Government to indicate whether, in addition to the leadership of the Civil Service Committee, the leaders of organizations of public servants also have extra protection against the elimination of positions or benefit from other similar measures, including in the event of recourse to the compulsory purchase of redundancy mechanism. Lastly, observing that PSI–Ecuador and the UNE indicate that legal action has been taken to have the above mechanism declared unconstitutional, the Committee requests the Government to provide information on the outcome of the legal action.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee noted with concern that the constitutional amendments adopted in December 2015 limit the right to engage in collective bargaining to the private sector and that the Basic Reform Act adopted in May 2017 does not provide for collective bargaining mechanisms but only recognizes the possibility of social dialogue between the Civil Service Committee and the public institutions on a limited number of subjects not including remuneration. On the basis of the above, the Committee urged the Government to reopen an in-depth debate with the trade unions concerned with a view to re-establishing an adequate collective bargaining mechanism for all categories of workers in the public sector covered by the Convention. The Committee also asked the Government to provide information on collective agreements signed with public sector workers hired prior to the entry into force of the constitutional amendments of 2015.

The Committee notes the Government’s indications in this regard that: (i) on 4 April 2018, the Ministry of Labour issued two circulars (No. MDT-2018-0018 and No. MDT-2018-0019) confirming that there are no restrictions preventing persons hired as public employees before the 2015 constitutional amendments – who are therefore subject to the provisions of the Labour Code – from retaining their right to collective bargaining; (ii) since the two circulars were issued, six new collective agreements have been signed in the public sector for the above-mentioned category of workers; and (iii) as previously mentioned, Ministerial Order MDT-2018-0010 regulating the exercise of the right to organize for public servants was adopted in 2018. The Committee also notes the indications of PSI–Ecuador and the UNE that: (i) the constitutional amendments of 2015 excluding the entire public sector from the scope of collective bargaining have been annulled by the Constitutional Court (Judgment No. 018-18-SIN-CC of 1 August 2018) for procedural flaws, which intensifies the legal limbo for public sector workers who were previously subject to the provisions of the Labour Code; (ii) the Ministry of Labour reported a proposal to reform the Labour Code which would cover both private and public sector workers but the drafting of the proposal is making slow progress; (iii) a public sector committee with an advisory role regarding remuneration has been set up within the National Labour and Wage Board but there are problems regarding trade union representatives on that committee being co-opted by the Government; and (iv) even though there has been some resumption of collective bargaining with public sector workers hired prior to the 2015 constitutional amendments (and who therefore retain their right to collective bargaining), the aforementioned negotiations are subject to multiple restrictions which have been observed since 2008 by the ILO supervisory bodies, especially as regards remuneration.

While welcoming the resumption of collective bargaining with public sector workers hired prior to the 2015 constitutional amendments, the Committee observes that the Basic Reform Act and the new Ministerial Order regulating the exercise of public servants’ right to organize still do not recognize the right to collective bargaining for other public sector workers. In this respect, the Committee once again recalls that under Articles 4 and 6 of the Convention, persons employed in the public sector who are not engaged in the administration of the State (including employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers and transport personnel) are covered by the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 172). Hence they should be able to negotiate collectively their conditions of work, including their wage conditions, and mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see 2012 General Survey, op. cit., paragraph 219). Observing that both the effects of the Constitutional Court judgment of 2018 concerning the constitutional amendments of 2015 and the planned revision of the Labour Code may constitute a favourable context in this respect, the Committee once again urges the Government to reopen an in-depth debate with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of workers in the public sector covered by the Convention. The Committee requests the Government to provide information on progress made in this regard and reminds the Government that it may avail itself of technical assistance from the Office in this respect.

Application of the Convention in the private sector

Article 1. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee asked the Government to take the necessary measures to ensure that the legislation includes a specific provision guaranteeing protection against acts of anti-union discrimination in access to employment. The Committee notes the Government’s indication that: (i) on 16 June 2017, Ministerial Order No. 16 was issued, containing regulations for the elimination of discrimination in the workplace; (ii) however, the regulations in force do not contain specific provisions regarding the prohibition of anti-union discrimination in access to employment; and (iii) measures ensuring compliance with the comments of the Committee will be decided upon in the regulatory reform process and in the adoption of secondary legislation. Recalling that it has been repeating its comments on this matter for decades, the Committee trusts that the Government will very soon be in a position to report that a specific provision has been introduced into the legislation guaranteeing protection against acts of anti-union discrimination in access to employment.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee pointed out the need to amend section 221 of the Labour Code with respect to the submission of draft collective agreements so that, where there is no organization with over 50 per cent of the workers as members, minority trade unions may, either alone or jointly, negotiate on behalf of their members. The Committee once again notes that the Government again indicates that the content of section 221 of the Labour Code, in line with sections 452 and 459 of the Code concerning enterprise committees, is based on democratic principles in determining that the most representative organization shall be the one authorized to negotiate with the employer. In this respect, the Committee once again recalls that, while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see 2012 General Survey, op. cit., paragraph 226). In the light of the above, the Committee once again requests the Government, in consultation with the social partners, to take the necessary steps to amend section 221 of the Labour Code so that where there is no organization with over 50 per cent of the workers as members, minority trade unions may, either alone or jointly, at least negotiate on behalf of their members. Moreover, noting the Government’s indication that it is not currently in a position to provide the requested statistics, the Committee once again requests the Government to provide information on the number of collective agreements signed and in force in the country, the sectors of activity and the number of workers covered by them.

Ministerial Orders establishing new forms of contract for banana plantation workers and agricultural workers. The Committee notes that PSI–Ecuador and the UNE have sent observations from the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) claiming that Ministerial Orders Nos MDT-029-2017, MDT 074-2018 and MDT-096-2018, which establish new forms of contract for banana plantation workers and agricultural workers, obstruct the effective exercise of the right to collective bargaining in those sectors. The Committee requests the Government to send its comments in this regard and to provide information on existing collective agreements in the above-mentioned sectors.

Recalling that in 2017 the Government agreed with the Office on the provision of technical assistance on legislative matters but that the Committee has not received any further information on this matter, the Committee continues to trust 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.