Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Article 3 of the Convention. Right to strike of public servants. The Committee previously observed that the Basic Act reforming the laws governing the public sector (Basic Reform Act), adopted in 2017, contained excessive restrictions on the right of organizations of public servants to organize their activities and formulate their programmes, as recognized by Article 3 of the Convention. The Committee considered in particular that, as regards public servants who do not exercise authority in the name of the State: (i) the list of public services in which the right to strike is prohibited (health; environmental sanitation; education; justice system; fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; postal and telecommunication services) should be limited to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) for public services of fundamental importance, the satisfaction of the basic needs of users or the continuous operation of installations in safe conditions can be ensured through the establishment of negotiated minimum services decided, if no agreement can be reached by the parties, by a joint or independent body which has the confidence of the parties, and not by the Ministry of Labour, without in any way calling into question the integrity of the latter or of its officials; and (iii) the referral of collective disputes to compulsory arbitration (which, according to the Act, can be decided by the Ministry of Labour when the latter considers that the provision of the corresponding public service is endangered) should be limited to situations in which strike action may be prohibited for public servants who exercise authority in the name of the State, to essential services in the strict sense of the term or in an acute national crisis (see the 2012 General Survey on the fundamental Conventions, paragraphs 131, 136 and 153). In this regard, the Committee notes the Government’s assertion that the legislation concerning the right to strike of public servants is adequate and does not impose excessive limitations. The Government reiterates that any stoppage of the above-mentioned services is prohibited because these are basic services to which the general public must have universal access and a total stoppage of these services would signify a violation of the rights of the rest of the population and would undermine the mission of the State to protect its citizens. Emphasizing once again that the necessary protection of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, through the fixing of minimum services possible for public services of fundamental importance, the Committee once again requests the Government, in light of the considerations recalled above, to take the necessary steps to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes.

Determination of minimum services in the private sector in the event of disagreement between the parties. The Committee previously asked the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event of disagreement of the parties concerning the determination of minimum services in the private sector, the decision is not taken by the government authorities. The Committee notes the Government’s indication that, if there is no agreement on the implementation of minimum services, it is up to the Ministry of Labour through the regional directorates to establish procedures for the provision of minimum services and that the intention is to maintain basic operations on the employers’ side to prevent damage to, or deterioration of, installations, property and assets. In this regard, the Committee recalls that it has always considered that any disagreement on minimum services should be resolved not by the government authorities but by an independent body or a joint body comprised of representatives from workers and employers, either body having the confidence of the parties, and being responsible to examine quickly and without formalities the difficulties raised, and empowered to issue enforceable decisions. The Committee therefore once again requests the Government to take the necessary steps to amend section 515 of the Labour Code in the manner indicated.

Compulsory arbitration in the private sector. The Committee previously observed that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals. The Committee asked the Government to adopt the necessary measures to amend the legislation, in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s indication that mediation is a process undertaken voluntarily and that this process becomes compulsory if differences persist between the parties in situations such as strikes. The Government also indicates that the aim is to ensure that the parties resolve their differences and that compulsory mediation in disputes such as strikes guides the parties and enables them to reach fair and satisfactory agreements, which cannot be achieved without an impartial mediator, when the dialogue between the parties involved does not reach a consensus. However, the Committee observes that the provisions in question contain the possibility of referring disputes not only to mediation but also to compulsory arbitration. In this regard, the Committee recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee therefore once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations indicated above.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, the Committee had been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes that the Government, after referring to the constitutional provisions which recognize the right to strike of workers and their organizations, indicates that there is a wide range of second- and third-level labour organizations which have led various initiatives and cherished labour victories as their own, and that federations and confederations of workers play a vital advisory and support role with respect to strike calls by primary-level labour organizations. While noting these indications, the Committee requests the Government to clarify whether or not the national legislation allows federations and confederations to call strikes and, if applicable, to provide detailed information on general strikes convened by federations and confederations.