Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

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

Written information provided by the Government

The Ministry of Labour, pursuant to its constitutional and legal powers, is the body responsible for regulating and guaranteeing the right to work in the territory of Ecuador, in accordance with the provisions of the Constitution of the Republic of Ecuador, international agreements signed by the country, and the legal system in force, specifically the provisions of articles 33 and 326(7) and (8) of the Constitution, in which the right to freedom of association is recognized, with the State having the implicit duty to promote the functioning of labour organizations in accordance with the fundamental principles of democracy, participation, transparency, rotation and legality.

It should be noted with regard to the exercise of constitutional rights in Ecuador that, in accordance with article 11(3) of the Constitution, the said rights shall be immediately applicable to and by any male or female public servant. It should be emphasized that constitutional rights will be exercised in a progressive manner through standards, jurisprudence and public policies, in accordance with article 11(8) of the Constitution, complying in this regard with previous requirements for exercising that right, taking into consideration that freedom of association is a right recognized in the Ecuadorian legal system, as provided for by article 326(7).

In terms of application of the hierarchy of standards enshrined in article 425 of the Constitution, the State is bound to apply the provisions of ILO Convention No. 87, an instrument which defines freedom of association as: the right of workers to establish and join organizations of their own choosing; to draw up their constitutions and rules; to elect their representatives in full freedom; and to organize their administration and activities and to formulate their programmes, without interference from the public authorities.

In order to monitor compliance with the provisions of Convention No. 87, the ILO has made concrete observations to the country. The Ministry of Labour therefore considers it important to underline the following points.

In accordance with the principle of legality and the right to legal certainty, the State of Ecuador is developing a normative proposal in the area of labour legislation and at the same time seeking to issue or reform related standards (Regulations on Labour Organizations) with legal and technical input from the Ministry of Labour, taking account of the participation of workers and employers in tripartite dialogue forums, in order to comply with the principles of participation, transparency, rotation and legality on the part of the State, and thus better guarantee the application of the right of association.

In this context we inform you that the Ministry of Labour has granted legal personality to a total of 5,783 labour organizations (4,064 private, 1,719 public), with a membership of 312,748 persons. These data are constantly being updated, according to the information supplied by the organizations. As regards committees of public servants, three organizations have obtained legal personality, with 979 members. As part of the implementation of the functions of the Ministry of Labour with respect to labour organizations, since 2021 the Ministry has responded, through ministerial decisions or official letters, to 2,416 applications relating to constitutions, statute reforms, registration of executive committees and various formalities.

The Republic of Ecuador is currently complying with the ruling of 25 May 2021, as part of Judgment No. 17981-2020-02407, on the case of the right to freedom of association, which, in its relevant part, contained the following inter partes decision:

[It is ordered that:] “(2) The Ministry of Labour, pursuant to revision and analysis of the documents of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), shall proceed with its registration as a trade union. … (5) The Ministry of Labour shall regulate the exercise of the right to freedom of association by branch of activity.” In compliance with the above-mentioned due process and the regulations in force, legal personality was granted to ASTAC by means of Ministerial Decision No. MDT-2022-001 of 11 January 2022, further to registration of the list of constituent members by means of Official Letter No. MDT-VTE-2022-0035-O of 10 January 2022. In addition, as the Ministry of Labour already explained, secondary legislation is being developed.

The State of Ecuador is undertaking the necessary actions to comply with the provisions of Convention No. 87. In this context, we reiterate our acceptance of the technical assistance to be provided by ILO experts, presented in 2021 as part of the reports on Conventions ratified by the country. This assistance will make it possible to hold working groups on the implementation and applicability of legal instruments for fostering and above all enabling tripartite social dialogue in Ecuador, the aim of which is to reinforce existing channels of communication between the Ecuadorian Government and the national actors in the labour sphere.

Discussion by the Committee

Government representative, Minister of Labour – For us Ecuadorians it is a pleasure to be part of the ILO. We are one of the first countries in the world to have signed the Convention as a result of being part of the ILO and it gives us the greatest pleasure to be here now.

The State of Ecuador, as an active Member of the ILO since 1948, has been working to provide responses to the needs of society, and since the advent of the Government of President Guillermo Lasso, “the Government of encounters”, efforts have increased enormously to ensure that citizens’ rights, especially labour rights, are observed.

In my statement at the 109th Session of the International Labour Conference, I mentioned that it is a priority for Ecuador to include all stakeholders in the formulation of policies needed for the creation of quality employment, making use of social dialogue as an effective instrument for the management and adoption of measures and of course for finding solutions.

However, these efforts and commitments have to come from all parties to this social dialogue and generous contributions must come from all our forums to create better conditions for eliminating the gaps that create inequality. We wish to overcome inequality. The Government is absolutely convinced that with appropriate state policies we can overcome inequality, the gender wage gaps, the inequality gaps and the ill treatment that young people have suffered prematurely throughout Latin America and, of course, we are also concerned with freedom of association and protection of the right to unionize or organize in the private sector.

With regard to Article 2 of the Convention and the observation of the Committee of Experts regarding the possibility of establishing trade union organizations by branch of activity, the Ministry of Labour, which I am in charge of thanks to the generosity of President Lasso, in strict compliance with the ruling of 25 May 2021 of the Provincial Court of Justice of Pichincha, by Ministerial Decision No. MDT-2022-001 of 11 January 2021, signed by the Deputy Minister for Labour and Employment, decided in articles 1 and 3 to approve and register the constitution of ASTAC and grant legal personality to this union, ordering the Regional Directorate for Labour and Public Service of Guayaquil, a major city in Ecuador, to register the name and details of the constitution of the aforementioned association. Hence, by a decision of 27 January 2022, the judiciary indicated that the ruling had been complied with. Beyond what we may or may not think about this sensitive subject, we always comply with the law.

In this context, I must point out that the Government ensures and will always ensure that the rights and guarantees established in the Political Constitution of Ecuador and, of course, in duly ratified international Conventions, are fulfilled. Article 326(7) of the Constitution, the text of which explicitly defines the right to organize as a fundamental principle and, moreover, the right to work, forms the basis for building a just society with equal rights and freedom of association.

Documents inherent to the Constitution of Ecuador and of course our whole legal framework are evidence of the respect for the equal status of the rights of freedom of association.

Furthermore, in labour relations within a country under the rule of law such as ours, there are clear standards that regulate the establishment of labour organizations. National law has seen the need to require trade union leadership to be based on having the most representative status within enterprises. However, it should be emphasized that the setting of a minimum number of workers and limiting the establishment of a trade union to the enterprise level is not aimed at restricting or limiting the creation of this type of organization. Rather, the aim is to ensure the representativeness of the trade union in its relations with the employers, demonstrating cohesion and agreement on the part of the majority.

With regard to Article 3 of the Convention, referring to compulsory time limits for convening trade union elections, the Government, through the Ministry of Labour in response to the ILO’s comments, is working with a legal technical team on preparing the reform of the Regulations on Labour Organizations, issued by a ministerial decision of 8 August 2013, with regulation being imposed only as an exception in cases where the association’s constitution does not provide for procedures to appoint its representatives when the association is without officers.

In line with the observation on the same Article regarding the requirement to be of Ecuadorian nationality in order to hold trade union office, the Ministry of Labour, within its area of competence, on the basis of article 326(7) of the Ecuadorian Constitution and with regard to Article 3(1) and (2) of the Convention, registers the officers of labour organizations on the basis of the provisions of the Ecuadorian Labour Code, respecting freedom of association and the right to organize, and enabling the organization concerned to operate within the activities inherent to its legal existence in full autonomy, preserving its legal certainty through the corresponding legal analysis, which includes fulfilment of the basic requirements, in this case the relationship of labour dependency, as established by section 449 of the Labour Code and the legal power of anyone who convenes, legitimizes and certifies the election process and the formal requirements established by section 9 of the Regulations on Labour Organizations. Where this is the case, the Ministry will promote inter-institutional coordination for the implementation of effective policies for the public benefit, providing the necessary adequate support for undertaking the reform suggested by the ILO.

On the other hand, as regards the election of non-affiliated workers as officers of enterprise committees, the standards in force recognize freedom of association, which is the right of workers to establish and join organizations of their own choosing, without previous authorization; the right to draw up their constitutions and rules; the right to elect their representatives in full freedom; and the right to organize their administration and activities and formulate their programmes, without interference from the public authorities. Hence, in accordance with Article 3(2) of the Convention, the State of Ecuador does not have any authority to intervene in the due exercise of freedom of association.

Furthermore, with regard to the application of the Convention in the public sector, I would like to make the following points:

- With regard to Article 2 of the Convention concerning the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, the Ecuadorian State, seeking to ensure that public servants have the right to organize, issued in 2017 the reform to the Basic Public Service Act (LOSEP), incorporating in that text the right to establish committees of public servants, determining the features and general aspects for their establishment and management, and establishing the legal exceptions that were consistent with the nature of certain activities which must be impartial in the exercise of their functions and which normally correspond to activities related to the defence of the State or the general public and the provision of public services. We want the provision of public services to be of a high quality.

- With regard to the observation of the right of workers to establish organizations of their own choosing without previous authorization, particularly regarding organizations of public servants other than the committees of public servants, the legal provisions in force in Ecuador determine two labour regimes for the public sector: one relating to bureaucrats who are covered by the LOSEP, and one relating to workers under a special scheme in line with their duties who are covered by the Labour Code. In both cases the freedom to organize is recognized.

- With regard to the registration of associations of public servants and their officers, article 66(13) of the national Constitution recognizes the right to associate, assemble and demonstrate in a free and voluntary manner, thus recognizing as a constitutional right the right to associate, in accordance with section 36 of the Basic Act on Civic Participation, which establishes that social organizations that wish to obtain legal personality shall complete the formalities with the various public authorities corresponding to their sphere of action duly based on section 3 of Decree No. 193, which defines a social organization as “one whose purpose is not to secure any economic benefit but whose goals are principally social, altruistic, humanitarian, artistic, community-related, cultural, sporting or environmental”, etc.

It is important to mention that Ecuadorian legislation recognizes various types of associations, which are regulated by different sets of regulations that are applicable to their nature.

With regard to the observation of the Committee of Experts that the necessary steps should be taken to amend section 346 of the Basic Comprehensive Penal Code, we reiterate that public servants’ right to strike is specified in Chapter III of the LOSEP, and what constitutes a criminal offence is when a person commits acts of violence or causes damage to private property or generally blocks people’s access to public services which we wish to be of high quality. In other words, the Ecuadorian State recognizes the right to legitimate strike action by public servants, provided that it is peaceful.

Lastly, with regard to the administrative dissolution of the National Federation of Education Workers (UNE), this Government insists that the union’s dissolution was governed by the regulations in force, with the corresponding administrative formalities and due process in the competent government institution having been completed.

Recognizing the importance of the observations made by the Committee of Experts, the “Government of encounters”, the Government of President Lasso, through the Ministry of Labour, convened a tripartite dialogue within the National Labour and Wages Council. A meeting was held on the premises of the Ministry on 30 May 2022 in which representatives of both the workers and the employers participated freely and actively. The meeting was moderated by the highest authorities of the Ministry of Labour – starting with myself, as I am the Chairperson of the National Labour and Wages Council, promoting social dialogue in labour relations and in dispute settlement, an area in which we are ready to receive the necessary international collaboration and technical assistance for promoting tripartite dialogue.

In Ecuador, there are practically no labour disputes, no significant labour conflict. We have resolved the recurring issues in a decisive, just and timely manner. The Ministry of Labour seeks to create an amicable atmosphere between workers and employers. This has been the hallmark of the “Government of encounters”, this has been the hallmark of the Ministry of which I am now the head.

We are therefore rigorously addressing the topics inherent to the defence of workers’ rights. We are also concerned with defending the rights of non-workers, the Ecuadorians who do not have jobs. Through major drafts of laws and regulations, we are striving to ensure that, God willing, non-workers can find decent and stable work. We are concerned with those who do not have jobs, and we are always paying attention to the rights of workers who, with God’s help, do have jobs. So this form of action by the Ministry of Labour is the appropriate one when there is a desire to do things well.

Worker members – We want to draw attention to the fact that the most representative unions in Ecuador were not consulted in the delegation to the International Labour Conference and are not part of it. A complaint is currently before the Credentials Committee, however, pending this process, we will have to examine the case of Ecuador without the benefit of an intervention from the Workers’ delegate of Ecuador and we deeply regret this absence which can only be detrimental to the discussion.

This is the second time in five years that the Committee has had to examine the application of this Convention by the Government of Ecuador. Regrettably, no significant improvement was recorded during this time and anti-union acts and attacks against freedom of association committed by the authorities and by employers continue unchecked.

For many years, the Committee of Experts has been raising concerns regarding legal gaps in the protection of the right to freedom of association and collective bargaining and the pervasive anti-union climate which prevails in the country. In the public sector, workers are deprived of their fundamental right to establish and join organizations of their choosing. The Basic Reform Act of 2017 established the concept of a committee of public servants which guarantees certain prerogatives to organizations of public servants comprising 50 per cent plus 1 of the staff. These provisions trample on trade union pluralism by preventing organizations of public servants other than these committees from representing and defending the interests of their members. The Basic Reform Act also excludes from the right to join and form trade unions certain categories of public service staff, including those under contract for occasional services, those subject to free appointment and removal from office and those on statutory fixed-term contracts.

In addition, Decree No. 193 excessively restricts freedom of speech and opinion for public workers and their organizations as it retains engagement in party political activities as grounds for administrative dissolution. Despite calls from the Committee of Experts to amend this rule, the Government persists in saying that party politics are the sum total of activities aimed at governing society from a specific ideological or philosophical standpoint and that these activities are prohibited for trade union organizations since the unions’ objectives regardless of political affinity must seek and focus on the economic and social improvement of their members. We must express our firm disagreement with such an interpretation and reaffirm, as did the Committee of Experts, that defending 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 suspension for administrative dissolution of such associations.

We recall that, in 2016, the National Federation of Education Workers (UNE) was dissolved by an Administrative Act issued by the Under-Secretariat of Education and its property was seized by the administration. The organization has been seeking re-registration ever since, and it is facing administrative obstruction in this process. As regards the private sector, numerous legal obstacles continue to hinder the development of independent and strong unions in the country, especially sections 443, 449, 452 and 459, which fix at 30 the minimum number of members required to establish workers’ associations and enterprise committees and do not permit the establishment of primary-level unions comprising workers from several enterprises.

In an economy characterized by the prevalence of small enterprises, such provisions represent a significant hurdle to the exercise of freedom of association. Furthermore, section 459(3) and (4) of the Labour Code, constitute undue interference in the elections of trade union officers. Paragraph 3 provides that enterprise committees shall be composed of any workers, whether or not union members, who are registered on the list for such elections in complete violation of the right of unions to freely administer themselves, while paragraph 4 requires Ecuadorian nationality to be eligible for trade union office. The Committee of Experts has been calling for years that these provisions are contrary to Articles 2 and 3 of the Convention and must be amended. The Government of Ecuador has yet to comply with the comments of the Committee of Experts.

Section 10(c) of Ministerial Decision No. 0130 of 2013 provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of expiry of their term of office, as set out in their respective union constitutions.

This provision clearly constitutes undue interference in internal trade union matters and bears a serious risk of paralysing the capacity for trade union action. Meanwhile, these legal provisions have very real consequences for trade unions. In 2020, the Ministry of Labour had refused to register ASTAC as a trade union on the grounds that it was not formed of workers from the same enterprise. ASTAC challenged this decision in court and obtained a ruling in the Provincial Court of Justice of Pichincha on 25 May 2021, which ordered the Ministry to proceed with its registration as a trade union and to regulate the exercise of the right to freedom of association by branch of activity so as to avoid any recurrence of such situations. Despite this ruling, ASTAC’s request for registration remained pending for seven months before the Ministry of Labour, which, as it was finally complying with the ruling, indicated to ASTAC that their registration was a one-off situation that would not lead to the registration of other branch unions. To top it all, the Ministry also filed an extraordinary motion for protection which is currently before the Constitutional Court of Justice.

Finally, we must deplore the total inaction of the Government of Ecuador to fulfil its commitments to the technical assistance mission which was carried out by the Office at the request of the Government in December 2019. The mission had presented the tripartite constituents with a draft road map for initiating a tripartite dialogue with a view to adapting measures to address the comments of the ILO supervisory bodies. Since then, no steps have been taken to give effect to this road map and the Government claims now that it wishes to receive technical assistance only with regard to tripartite dialogue, with the aim of improving and strengthening communication between the Government and social partners. In the view of the Worker members, making good on its international commitments giving effect to the road map presented by the technical assistance mission, and amending as a matter of urgency the legal provisions which are not in compliance with the Convention in consultation with the social partners, would be a good place to start to improve communications with workers and trade unions.

Employer members – To start with, the Employers’ group recalls its disagreement with the views of the Committee of Experts in relation to this Convention and the right to strike. The Employers’ group recalls the statement made in March 2015 by the Government group that the “scope and conditions of this right are regulated at the national level”. It is within this meaning that the Employers are approaching this discussion of the case of the application of the Convention by Ecuador.

This is a very long-standing case, which has been examined by the Committee on many occasions, most recently in 2017. It involves serious issues and refers to a fundamental Convention, for which reason it has to be dealt with by us very carefully. We note with concern that, despite the technical assistance provided by the Office in 2019, there have not been any tangible results. Nevertheless, according to the Minister’s statement and the information that we have received from the employers’ organization of Ecuador, the social partners are better disposed to engage in social dialogue on the issue with a view to seeking definitive solutions to the matters raised in the comments of the Committee of Experts, to which we give our resolute support. We therefore encourage the Government, workers and employers of Ecuador to resolve the issues raised by the Committee of Experts in accordance with the very specific characteristics of the legal system and national practice.

In the same way, we take due note of the information provided by the Government to the effect that the State of Ecuador is developing a legislative proposal on this subject with the legal and technical contributions of the Ministry of Labour and taking into consideration the participation of workers and employers. Social dialogue on this subject, in view of the will expressed by the Government and the social partners, will also give impetus to the social dialogue forum in the country, that is the National Labour and Wages Council.

We would like to contribute a few comments, without prejudice to the information that will be provided by our Employer colleague from Ecuador, on the issues raised by the Committee of Experts.

We support the comments of the Committee of Experts that workers should be able to freely establish organizations of their own choosing and that the requirement of a reasonable level of representativeness for the conclusion of collective agreements is in accordance with the ILO Conventions on freedom of association.

Without losing sight of the above, it needs to be noted that the Committee of Experts is recommending the amendment of laws which relate to one of the institutions of collective labour law, without taking the other such institutions into consideration. In this regard, we are convinced that the Government of Ecuador and the social partners, by engaging in social dialogue as noted previously, must take into account the overall revision of all the institutions of collective labour law in order to ensure a harmonious whole that is in conformity with the Convention. However, the amendment of an isolated provision would necessarily have repercussions on the others, and so the reform would have to be comprehensive to avert the danger of the system becoming non-functional.

That is of particular importance in relation to certain aspects referred to by the Committee of Experts: the number of persons required to establish a union, the establishment of unions by branch of activity and, in particular, the minimum level of representativeness of a union to negotiate at the branch level, which we understand is not a usual practice in the Ecuadorian context.

Provisions governing bargaining at the enterprise level cannot easily be applied directly to collective bargaining at the branch level. We would not be doing a great favour to the exercise of freedom of association in Ecuador if we encouraged the establishment of branch unions without there being clear requirements on the representativeness of those involved setting out their scope and obligations.

We would like to conclude by recognizing the predisposition to dialogue demonstrated by the Government and the social partners, for which reason we once again call for an effective and efficient process of overall review in the social dialogue forum in Ecuador, as indicated earlier, to give the system internal consistency and avoid isolated reforms which may give rise to contradictions or run counter to other international Conventions.

Employer member, Ecuador – In addressing the observations contained in the report of the Committee of Experts, we find it necessary to note that trade union rights and freedom of association are recognized in the Constitution of Ecuador as key principles of workers’ rights. That freedom allows workers to form, join and leave any type of organization. Indeed, those activities are encouraged by the State itself, in accordance with the provisions set out in law; that is, there are no restrictions on the establishment of labour organizations in the private sector.

According to the Convention, the acquisition of legal personality by employers’ and workers’ organizations may not be made subject to conditions of such a nature as to restrict the application of the Convention’s provisions. In accordance with that rule: national legislation grants legal personality to trade union organizations without the need for previous administrative authorization; guarantees their right to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration without interference from the authorities; and guarantees the right to dissolve or suspend organizations without any previous administrative authorization. The Convention recognizes that the application of some provisions may, however, be subject to the legislation of each signatory, such as in relation to the representativeness requirements that workers must fulfil in order to establish trade union organizations that respect parameters of rationality and objectivity, thereby avoiding obstacles and serving as a guarantee for both parties in the employment relationship, as recognized expressly in the 2012 General Survey on the fundamental Conventions. Accordingly, under the Ecuadorian Labour Code, at least 30 workers are required to establish a trade union. However, to establish an enterprise committee, which is the highest level of trade union representation, 50 per cent plus one of the enterprise’s workers are required. That distinction is explained by the different powers granted to those organizations. For example, enterprise committees are responsible for representing workers in collective bargaining, whether or not they are unionized, and also have the power to call a strike, in accordance with the requirements set out in law. If any group within an enterprise, even a group representing a very small numbers of workers, could be recognized as a trade union organization and therefore represent unaffiliated workers, there would be a risk, firstly, of diluting labour demands, compromising the legitimate representation of the workers and harming relations between members of the different organizations present within the enterprise and, secondly, destabilizing the enterprise, thus threatening its sustainability, given the complexity of managing resources and monitoring and honouring the commitments made.

We therefore believe that freedom of association is not infringed by the requirement for a minimum level of representativeness for organizations to be established, and we therefore consider the mistaken assertion that the requirement for a minimum number of members hinders the freedom to establish trade unions. This is supported by the fact that there are currently 5,783 labour organizations, of which 4,054 are in the private sector. In the first quarter of 2022, 32.89 per cent of workers were in adequate employment, of whom 81.34 per cent were in the formal economy, and 46.3 per cent of those were in medium-sized and large enterprises. Therefore, if we consider the number of workers in medium-sized and large enterprises and the number of labour organizations in the private sector, it is clear that the problem of unionization lies outside the formal sector, that is, in the sector where the majority of workers are not in adequate employment, with an informality rate of 70.9 per cent, and 83.9 per cent of workers, mainly in micro- and small enterprises or self-employed, lacking any form of social protection.

Furthermore, the report of the Committee of Experts also deems the Convention to have been violated by the lack of approval of trade union organizations by branch of activity, owing to the Ministry’s initial refusal to recognize the legal personality of ASTAC, a case that remains pending before the Constitutional Court of Justice of Ecuador.

Given that freedom of association is linked intrinsically to the right to collective bargaining, our legislation links the exercise of that freedom to a specific employer, thereby allowing for the creation of the conditions necessary for employment relations to function and improve. We therefore believe that the recognition of trade unions by branch of activity, a concept that is alien to our legal tradition, would have a negative effect on employment relationships because it would bring together within one branch numerous organizations with differing objectives that would create conflicts of interest, particularly when negotiating the economic conditions governing the relationship with employers in that branch, thus leading to conflict among employers themselves given that realities and capacities differ even among employers in the same sector.

Any observation relating to freedom of association should be discussed in advance during tripartite consultations with stakeholders within the country, pursuant to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and with regard to the general analysis of the institution of collective rights contained in the Labour Code, with a view to arriving at an objective and rational determination of its impact given that a recommendation for amendments and consultation restricted to certain aspects of interest to a specific group would have a serious impact on legal certainty and the creation of adequate work and would threaten the sustainability of the formal sector.

Worker member, Argentina – Those of us who follow this Committee may be thinking, “Ecuador again! Governments change and Ecuador still comes before the Conference Committee on the Application of Standards.” In fact, governments change and, despite what we have heard, the same problems persist. Except that it is worse than that: the governments change and the problems get worse.

The Committee of Experts, the national jurisprudence of the Constitutional Court of Ecuador, the Inter-American Court of Human Rights, all those who examine the legal terms and social consequences of the labour regulations in Ecuador agree with the workers' complaints and claims. Thus, the governments, which are repeatedly cornered by international pressure given the clear lack of grounds, quickly resort to a request for technical assistance. In my country, we have expressions that mean “pass the buck” or “go through the motions”; in reality they are doing nothing and are misusing a remedy based on social dialogue to delay solutions. The ILO cannot allow the abusive use of its cooperation tools.

How many times will the Committee of Experts say that Ecuadorian regulations require an excessive number of members to form unions? How many times will the Committee of Experts say that workers with the status of public servants have the right to form unions? Years go by and we are still in the same position. How long will this continue?

How can it be that the requirement of union membership of more than 50 per cent in order to have the right to collective bargaining is still in force? This is a clear violation of freedom of association and is a requirement which is impossible to meet in Ecuador and which in fact functions to deny that right.

How is it possible that the prohibition persists against trade union organization and collective bargaining in branches of economic activity? What we have been told, then, is that what works in the world cannot work in Ecuador.

In the public sector the issue is extremely serious. Trade union leaders are criminally prosecuted if they contest government policies. The authorities went to the extreme of prosecuting a public sector union leader for his opinions on social networks. This is medieval criteria: public workers are considered servants of their feudal master and are not recognized as workers. The labour regime in the State is chaotic, with reform upon reform, patch upon patch. The Committee of Experts requests the Government to provide information on what the regulations are because not even they know what the applicable legal body is.

It is necessary to pass a regulation that establishes a legal basis for state public service workers in Ecuador without artificial distinctions between workers and employees that fully guarantees the right to freedom of association enshrined in the Convention with its three dimensions: freedom of association, free collective bargaining and the right to strike.

The Ecuadorian authorities invented the oxymoron of “compulsory resignation”. This is a contradiction in itself, a euphemism used to pressure workers into renouncing their rights. The Constitutional Court has declared the unconstitutionality of this famous decree; however, it has left its victims defenceless and without any reparation.

Worker member, Unites States of America – For several years, the Committee of Experts has repeatedly asked the Government of Ecuador to revise its Labour Code to remove several arbitrary restrictions on the right of workers to freely organize trade unions. The Committee of Experts has provided the Government with clear and specific guidance on how to bring its Labour Code into line with the Convention, but regrettably they remain out of compliance.

This is an important case as the deficiencies in the Labour Code identified by the Committee of Experts go directly to the heart of the ability of workers to organize trade unions at both the enterprise and sectoral level. For example, the Committee of Experts has found that the existing requirement that a minimum of 30 workers to form a trade union is simply too high and constitutes an unreasonable obstacle to the formation of trade unions. In addition, it has repeatedly asked the Government to lift the current ban on sectoral trade unions, which has been used by the Ministry of Labour to repeatedly deny workers in the banana sector their right to organize and bargain at the sectoral level.

Taken together, these legal restrictions on the formation of trade unions are clearly intended to frustrate legitimate trade union activity and represent a clear violation of the Convention. Accordingly, we call on the Government of Ecuador to take immediate action to revise its Labour Code in line with the Committee of Experts’ clear recommendations.

Worker member, Brazil – I wish to bring to the Committee’s attention information from the Ecuadorian trade unions to the effect that the Government aims to introduce in the National Assembly a new draft Labour Act entitled the Basic Act on Employment, which even as a draft is an even more regressive attack than those that currently exist and for which the Ecuadorian Government has been called before this Committee today.

The Government’s proposal is to finalize a new Act independent of the Labour Code:

- without public servants, including only workers in the public sector, deepening the division of the source of law that regulates the public sector;

- increasing inequality in the law;

- providing for the application of new agreements, leaving the Labour Code in limbo, leading to its disappearance; and

- with clear governmental interference in all areas of freedom of association, understood as the right to freedom of association, to collective bargaining and to strike.

Some aspects of this proposal can be briefly outlined as follows:

- limits to the establishment of a trade union, by increasing the number of members from 30 as it currently stands (which is already excessive as noted by the Committee of Experts) to 50;

- limiting the protection of trade union leaders against acts of anti-union discrimination, such as dismissal, exclusively to payment of compensation, to amounts that have been significantly reduced between 2020 and currently;

- government interference in determining the content of trade union constitutions;

- the definitive prohibition of collective bargaining in the public sector for workers in the manual labour category; and

- prohibition of the right to strike in public services.

The provisions set out in this draft Act are totally contrary to international labour law and more specifically the Convention. It is therefore a priority and a matter of urgency for the Committee to consider more robust support. For this reason, we call for a new visit by a high-level mission, to prevent an even greater setback and to give effect to international support.

Worker member, Italy – This is a joint statement with the Trade Union Confederation of Workers’ Committees (CCOO). The report of the Committee of Experts indicates that, for the case of Ecuador, the Committee has requested the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code.

We fully agree with the need to repeal this provision of Ecuadorian positive law, since it represents a serious penalization of one of the fundamental rights of working people.

We do not need to add anything to what is already known and said, such as the universal recognition of the right to freedom of association embodied in the founding instruments of the ILO and reaffirmed by the ILO Declaration on Fundamental Principles and Rights at Work, adopted in 1998, and by the constitutional charters, from the Mexican Constitution of Querétaro (1917) onwards.

Through freedom of association and its primary instruments, such as collective bargaining and strikes, workers are able to balance out industrial relations that are basically unequal due to an imbalance of power between the employer and the worker respectively. Freedom of association is a right that encompasses a range of different manifestations that are difficult to sum up, to the extent that the best definition of freedom of association is the one contained in Article 3 of the Convention, in the sense that it is the right to engage in trade union activity.

Within the framework of this concept, freedom of association enables the independent development of workers’ organizations’ activity for furthering and defending workers’ interests, as set out in Article 10 of the Convention.

In the dynamics of the exercise of union activity, the State cannot intervene in a punitive sense in the exercise of the right to freedom of association as it does in Ecuador, a position that has been repeatedly established by the Committee on Freedom of Association and as indicated in the observation of the Committee of Experts in relation to the present case.

Therefore, we ask the Republic of Ecuador to strictly observe freedom of association by repealing section 346 of the Basic Comprehensive Penal Code to make way for greater independence and freedom of association for the workers’ organizations of the country.

Worker member, Colombia – I speak on behalf of the three Colombian trade union confederations: the Single Confederation of Workers of Colombia (CUT), the Confederation of Workers of Colombia (CTC) and the General Confederation of Labour (CGT). We observe with immense concern the level of violation in Ecuador of freedom of association in its three facets: association, collective bargaining and strike action.

In Ecuador, of 8.5 million workers only 3.6 per cent have managed to unionize, one of the lowest rates in the region, and only slightly lower than in Colombia, where less than 5 per cent of workers are unionized in the private sector.

The excessive requirement of 30 workers in the same enterprise to form a union, when 89 per cent of the firms in the country are micro or small enterprises with less than 25 workers, makes it unfeasible in practice to belong to a union; this, added to the complete refusal of the Government to permit the establishment of branch- or industry-level unions, maintains union association as a marginal right in Ecuador and not the fundamental right that it is.

The calls of the Committee of Experts and the Committee on Freedom of Association, and even those of the Constitutional Court, have fallen on deaf ears in the Government of Ecuador. The Digital Platform Workers’ Front (FRENAPP) union has tried several times to register with the Ministry, which refuses to grant it legal personality, contrary to the recommendations of the ILO. Although the Ministry has been ordered to regulate the exercise of the right to union association by branch of activity, the Ministry and the Attorney-General’s Office insist that only workers with a common employer and in a relationship of dependence can organize, openly ignoring Article 3 of the Convention. What a strange country this is.

Although Ecuadorian legislation provides for collective bargaining at a higher level, it is thwarted by government practice and obstacles, as is also the case in Colombia (where, for example, the professional football players’ association has not been able to negotiate its demands). These normative gaps or lack of specific regulation in Ecuador, as in Colombia, are used by anti-union employers and governments to obstruct freedom of association and the advancement of collective bargaining.

Ecuador has promoted a legislative initiative with arbitrary provisions, making the Ecuadorian Government deserving of great reproach for its serious non-compliance with the Convention and for which a high-level mission would be a more than necessary measure. We are with you, fellow workers of Ecuador!

Observer, Public Services International (PSI) – It is becoming the custom of this Committee to discuss the case of Ecuador, either under the Convention before us today, or under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98); three times in the last five years or four times in the last eight years.

If we add the observations of the Committee of Experts and the cases before the Committee on Freedom of Association, as well as the rulings of the highest legal body in Ecuador and the Inter-American Court of Human Rights, we can affirm that at this point it is no longer a technical or legal discussion, but a case of the political obstinacy and bad faith of three different governments.

And then there are the ILO missions; firstly, the technical mission in January 2015, which made a series of recommendations, particularly on the right of civil servants to form the unions of their choosing. Then there was a technical assistance mission in December 2019, carried out at the request of the Government, which presented a draft road map for a tripartite dialogue to be initiated with a view to adopting measures to address the comments of the ILO supervisory bodies. The mission’s recommendations were ultimately not implemented by the Government.

Now, we understand that there is a new request for technical assistance. The question is: for what?

If I were sitting in the central section of this room, representing one of the governments that do not use natural disasters or pandemics as an excuse to avoid fulfilling their obligations or, above all, to avoid making financial contributions for the effective functioning of this Organization, I would be offended that resources are being squandered on technical assistance which will then be ignored.

For many, it is enough to spend a week at the International Training Centre of the ILO in Turin and, for others less fortunate, reading the International Labour Standards Department’s publications, which are also available in Spanish, to understand the scope and limits of this fundamental Convention.

Even our colleagues in the Employers’ group, who in recent years have been very critical of some aspects of the application of the Convention, agree that there is a clear violation as far as the public sector is concerned.

The Minister said that one of the Government’s goals is to overcome inequality. Either he is lying or he is mistaken, because without respect for the fundamental Conventions these goals will not be achieved.

We would like this Committee to agree on conclusions that actually help to achieve a positive resolution of this case in the short term. It is not more technical assistance that is needed but more firmness from the Government of Ecuador.

Government representative, Minister of Labour – I have listened closely to the statements of the Worker members of Argentina and Colombia, and that of the observer from PSI.

I am going to respond with the utmost tact, since everybody deserves respect, and I am one of those people who respect different opinions. I am part of the “Government of encounters”, which respects different opinions. Every opinion has value when there is respect for others’ opinions – not necessarily agreement, but respect. I am going to begin by repudiating the phrase used by the Worker member of Colombia, when he said, in reference to Ecuador – and I quote – “what a strange country this is”. I will not tolerate this phrase. I exclude this absolutely erroneous and tendentious reference to my country from the language that should be used among Latin Americans. My country is respected just as I respect Colombia, a country with which we have a strong fraternal relationship. A few months ago, I had the enormous pleasure of receiving in Quito the Minister of Labour of Colombia, Mr Ángel Cabrera, a gentleman in his public duties. So that phrase uttered by the Worker member of Colombia is not accepted, either by me, or by my country’s Ministry of Labour, or by the Government led by President Lasso. In Ecuador, there is freedom of association, absolute freedom of association; what cannot exist is licentiousness with regard to violent protests. In my statement I mentioned the absolute respect for strikes in my country, provided that they are free of violence.

I would like to state that the United Front of Workers (FUT) of my country has been received continually by the Ministry of Labour. Moreover, in Ecuador in recent weeks we have held a number of meetings with the FUT leaders, including Mr Mesías Tatamuez, with whom I have a very good relationship. I also have a very good relationship with the President of the Confederation of Workers of Ecuador (CTE), Mr Edgar Sarango, and I have a very good relationship with Mr Richard Gómez of the United Federation of Workers of Ecuador (CUT). We are creating an amicable atmosphere between workers and employers, this is the way the “Government of encounters” proceeds, and evidently we reject the phrase that was used earlier.

Contrary to what the Worker member of Argentina said – namely, that in Ecuador compulsory resignation was established under the previous regime, under a regime different from ours, which now governs Ecuador – resignation cannot be compulsory, it has to be voluntary. It was a different regime from ours which established compulsory resignation by Decree No. 813 in Ecuador 11 years ago: let that be clear. We cannot accept any attempt to blame the Government of President Lasso for this absurd notion of compulsory resignation.

I say the same to the PSI observer regarding freedom of association, that Ecuador has an absolutely democratic Government which accepts other people’s opinions, when they are respectful, of course. To gain respect it is necessary to show respect first.

Amicable conduct has resulted in there being practically no labour conflict in Ecuador, except for the cases that always exist in a democratic country such as Ecuador. My greetings to Colombia, my greetings to Argentina, because I have referred to the two countries whose statements deserved an adequate, respectful, prudent and timely response from me.

Ecuador will always be respectful of the rights of workers but – and this is the important thing – we also wish to respect the rights of those who do not have jobs. The right to work is the most important human right after the right to life. The right to work is violated in my country and in our countries through the informal workers, the citizens who do not have employment. It is for them that we are striving, with respect for all the acquired rights of workers, all the trade union organizations which I have met and with which we have conversed. In recent weeks, we held meetings with the FUT leaders and we are discussing a labour law which can involve creating work for those who do not have it, which can repair the damage suffered by Ecuadorians who are living off informal work (known as tachuelo or chamba in Ecuador) and who, if they do not find work that day, will have little or nothing to eat. It is for them that we are working, not only for workers who are alright.

We defend the rights of workers, whether unionized or not. Incidentally, freedom to organize does exist in Ecuador, in response to somebody who claimed the opposite, but we are concerned with those who are not working, with the seven out of ten Ecuadorians who are either unemployed or underemployed or live in informality. This is the approach that defines the Government’s conduct. We will continue to fight for the rights of both non-workers and workers.

Worker members – As a preliminary remark, we note that the Employers’ group voices its position regarding the right to strike, so we must therefore do the same and reiterate that for the Workers’ group the right to strike is fully covered by the Convention and we reiterate, as well, our support to the Committee of Experts.

Then, we would like to thank the Government of Ecuador for its comments, and we also thank the other speakers for the interventions. However, we must deplore, despite all the words presented by the Minister, the unwillingness demonstrated by the Government of Ecuador to comply with its international commitments and to give full effect to the provisions of the Convention.

We recall that the Committee of Experts has been raising concerns over a number of legal provisions which do not comply with the Convention and some of these issues, like the excessive membership threshold for the establishments of unions, have been pending since 1992. Meanwhile, the laws of Ecuador continue to undermine workers’ rights to join and form unions, especially in the public sector, and to hinder trade union activities. Therefore, we call on the Government of Ecuador to amend, as a matter of urgency, the following laws in order to bring the legislation into line with the Convention.

- sections 443, 449, 452 and 459 of the Labour Code, which require an excessive number of workers for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees and impede the possibility of creating trade union organizations by branch of activity; then section 10(c) of Ministerial Decision No. 0130 of 2013 issuing regulations on labour organizations, which sets compulsory time limits for convening trade union elections;

- section 459(4) of the Labour Code, which requires Ecuadorian nationality to be eligible for trade union office;

- section 459(3) of the Labour Code, which allows workers who are not enterprise committee members to stand for office regardless of what the committee’s own statute provides;

- section 11 of the Basic Reform Act, which excludes certain categories of public sector workers from the right to form or join unions;

- the Basic Reform Act, which grants privileges to majority committees of public servants and deprives all other organizations of the possibility to defend the interests of their members; and finally

- Decree No. 193, which allows the administrative dissolution of public service unions.

We have noted from the interventions of the Government its indication that it is currently working with an ILO technical team to reform laws on the creation of trade unions. However, to our knowledge this process is conducted without the participation of trade unions, and we are therefore left to question the Government’s commitment to social dialogue. We insist on the fact that these commitments must be elaborated and adopted in full consultation with the most representative trade unions and must strictly abide by the recommendations of the Committee of Experts and the 2019 road map agreed with the ILO.

The Worker members also call on the Government of Ecuador to immediately comply with the ruling of the Provincial Court of Justice of Pichincha of 25 May 2021, which ordered the Minister of Labour to regulate the exercise of the right to freedom of association by branch of activity so as to allow workers from different enterprises to form a union.

Furthermore, the Worker members deplore the general anti-union climate prevailing in the public sector and urges the Government to take immediate action to foster an environment conducive to the full enjoyment of workers’ rights to freedom of association. We also call on the Government to proceed without delay to the registration of the National Federation of Education Workers (UNE). We think there have been some misinterpretations of certain words, which we deplore, and we think that the best thing is to continue dialogue at the national level to clarify and to really understand each other with what has been said instead of trying to solve it here. We strongly urge the Government of Ecuador to give effect to the road map presented in December 2019 by the ILO technical assistance mission.

Employer members – I thank the Minister from Ecuador for the information and my colleague from the Workers’ group for the discussion, to which we have listened with great attention, in relation to both the concerns of the Workers and the explanations provided by the Government. We have focused, in particular, on the form of the proposal to provide a national and particularly a tripartite response for the adaptation of Ecuadorian legislation to the precepts of the Convention, as just indicated by my Worker colleague.

It appears to us that this case has been examined enough in the Committee on various occasions for it now to be time for the Government and the social partners to take action. We trust that tangible steps will be taken very soon in this respect. We repeat that this must be done within the framework of tripartite cooperation involving dialogue in good faith and, in particular, giving rise to a comprehensive discussion of the subject covering the various collective labour law institutions involved so as to achieve a coherent solution.

Account must also be taken of national circumstances, within the framework provided by the provisions of the Convention as a reference for the regulation of the right of freedom of association.

We remind the Government that ILO technical assistance is available, both for the practice and the substance of the social dialogue that is called for to ensure that the law and practice are in conformity with the Convention.

We understand that there must be no reference to strikes in the conclusions of the present case. Lastly, we hope that the Government, in consultation with the most representative employers’ and workers’ organizations, will prepare and send a report to the Committee of Experts before 1 September 2022 on the situation of the dialogue and the solutions proposed by the Government and the social partners.

Conclusions of the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted with regret that no actions had been taken to follow up the technical assistance provided by the Office in December 2019.

The Committee also noted the long-standing issues regarding compliance with the Convention in Ecuador.

The Committee urged the Government to take action to foster an environment conducive to the full enjoyment of the right of workers and employers to freedom of association. The Committee noted that both the Government and the social partners raised the importance of labour law reform. The Committee expressed the hope that the Government would seize this opportunity to bring its legislation and practice fully into line with the Convention in consultation with the social partners.

Taking into account the discussion, the Committee urges the Government to take effective and time-bound measures, in consultation with the social partners, to:

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

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

- resolve registration of the National Federation of Education Workers (UNE);

- give effect to the road map presented in December 2019 by the ILO technical assistance mission;

- initiate a process of consultation with the social partners to reform the current legislative framework in order to enhance coherence and bring all the relevant legislation into compliance with the Convention.

The Committee invites the Government to avail itself of technical assistance from the Office.

The Committee requests that the Government accept a direct contacts mission.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 communicating information on the application of the Convention in law and practice, in consultation with the social partners.

Government representative – We have noted the conclusions. The State of Ecuador, protecting the right to organize, to appropriate association of various groups, including social, productive and labour groups, always grants powers to the various ministries so that they can formulate public policy, draw up secondary legislation and, precisely, guarantee the rights enshrined in the national Constitution and also of course in international treaties.

In the framework of these powers, the Ministry of Labour, which I have the honour to lead owing to the generosity of President Guillermo Lasso, issued Ministerial Decision No. 130 of August 2013 (Regulations on Labour Organizations). This is the only normative instrument that regulates this practice.

Within the Ecuadorian legal system, in labour matters, we have the Labour Code, which dates from 1938, and the Basic Public Service Act, which regulates labour activities in the public sector. These cover freedom of association for those providing services for both the public and private sectors.

Ministerial Decision No. 130 of 2013, to which I have just referred, in accordance with the provisions of the national Constitution, guarantees freedom of association, I repeat guarantees freedom of association, and regulates the process of establishing unions, the registration of union constitutions, the election of union officers, with ILO Conventions Nos 87, 98, 110 and 141 ratified for this purpose, directly connected with freedom of association and protection of the right to organize and collective bargaining.

With regard to organizations of rural workers and their function in economic and social development, the Ministry of Labour is constantly seeking to improve their products. Thus, the “open-door” Government has held meetings with the trade union federations in Ecuador, with the aim of reaching a technical and legal consensus.

As the Minister of Labour, I have received with respect all the trade union leaders, all the trade union organizations, on many occasions, creating and providing this amicable environment which is so necessary to enable workers and employers to hold talks. I chair the National Labour and Wages Council, and in these meetings, I have seen very positive camaraderie in relation to the workers or their representatives and the representatives of the employers.

What we are seeking is to promote, regulate and construct, with all social bases, an updating of regulations, always seeking to guarantee the rights that benefit not just one sector of our country but the whole collective and the promotion of social principles.

This Government, which has been in office since May last year, seeks to participate constantly in dialogue round tables with all the sectors involved in the building and improvement of standards, as well as in the international assistance which supports us with the aim of preserving compliance with workers’ rights, creating fruitful and lasting social dialogue. With this dialogue we seek to create standard-setting projects that are sustainable and satisfy the social needs of the parties involved in this work.

We anticipate a steady path ahead with social dialogue, proposals for benefits for all social actors and organizations, and that we will be able to present to you all the advances made in a social dialogue that drives human-centred recovery to build an Ecuador of opportunities.