Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Ecuador

Holidays with Pay (Agriculture) Convention, 1952 (No. 101) (Ratification: 1969)
Hours of Work and Rest Periods (Road Transport) Convention, 1979 (No. 153) (Ratification: 1988)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on hours of work, the Committee considers it appropriate to examine Conventions Nos 101 (holidays with pay in agriculture) and 153 (hours of work and rest periods in road transport) together in the same comment.

Holidays with pay (agriculture)

Article 1 of the Convention. Postponement of annual holidays with pay. The Committee notes that in response to its previous comment, the Government indicates in its report that under section 74 of the Labour Code, employers may decide to postpone for one year annual holidays with pay for workers who perform technical work or are in positions of trust and are difficult to replace for short periods. The Government also indicates that employers may authorize such postponement solely for the types of work established in section 58 of the Labour Code, that is: (i) persons who, in any form, represent the employer or act on the employer’s behalf; (ii) travelling insurance or commercial agents acting as salespersons or buyers, provided that they are not subject to fixed working hours; and (iii) resident guards or doorkeepers, provided that there is a written contract drawn up before the competent authority, establishing the specific requirements and nature of their tasks. With regard to section 75 of the Labour Code, which allows workers to relinquish their annual holidays with pay for three consecutive years, so that they can take them cumulatively in the fourth year, the Committee notes the Government’s indication that the authority to accumulate rests solely with the worker and not the employer. In this regard, the Committee recalls that the postponement of annual holidays with pay is not envisaged in the Convention and that it requires that a certain minimum proportion of annual holidays with pay must be granted to workers in agricultural undertakings and related occupations after a period of continuous service with the same employer. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that all workers covered by the Convention effectively enjoy a minimum period of holidays with pay each year.

Article 5(d). Exclusion of public holidays from the annual holiday with pay. The Committee notes that the Government provides no relevant information in response to its previous comment on section 69 of the Labour Code, which provides that all workers are entitled to enjoy annually an uninterrupted period of 15 days of rest, including non-working days. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the exclusion of non-working days, such as weekly days of rest, public and customary holidays, from the annual holiday with pay.

Hours of work in transport

Legislation. The Committee notes that on 25 November 2015, Ministerial Decision No. MDT-2015-0262 (the Decision) regulating specific labour relations in the land passenger and freight transport sector in all its forms was published in the Official Gazette. The Committee also notes that the Decision is intended to establish provisions regulating the special labour relations in the land passenger and freight transport sector in all its forms, as set out in section 63 of the General Regulations issued under the Basic Act on land transport, traffic and road safety, namely: public passenger transport (urban, inter-parish, inter-cantonal, inter-provincial and international); and commercial transport (school and institutional transport, conventional and executive taxis, light or heavy goods and tourist vehicles, and others) as an optional and voluntary contractual arrangement to those established in the Labour Code, for all persons and associations engaged in this activity, whether as employers or workers, including drivers and attendants. The Committee also notes that the second general provision of the Decision provides that the Labour Code shall apply in all matters not covered by the Decision.

Articles 5 and 7 of the Convention. Maximum continuous driving time. Breaks. The Committee notes that: (i) section 4 of the Decision provides that within the working time of transport workers the employer shall recognize periods set aside as breaks during driving, in conformity with the regulations in force; (ii) section 7 of the Act on the work of professional drivers provides that any professional driver providing services in a dependent relationship shall be subject to the working hours, additional or overtime hours set out in the Labour Code; and (iii) section 57 of the Labour Code provides that the normal working day may be divided into two parts, with a rest period of up to two hours after the first four hours of work, and may be undivided, if the Regional Director of Labour deems that circumstances so require. In the event of overtime hours, the parts of each working day shall not exceed five hours. The Committee requests the Government to indicate whether section 57 applies systematically to workers in the transport sector. If not, the Committee asks the Government to indicate in what other manner it is ensured that no driver is in practice authorized to drive continuously for more than four hours, or to work continuously for more than five hours without a break, as required by Articles 5 and 7 of the Convention.

Article 6(3). Reduction of total driving times. Particularly difficult conditions as determined by the competent authority. The Committee notes the absence of provisions in the Decision and in the Labour Code establishing that the total driving times of nine hours per day and 48 hours per week shall be reduced in the case of transport activities carried out in particularly difficult conditions. The Committee requests the Government to indicate the manner in which effect is given to this provision of the Convention.

Article 9. Exceptions. The Committee notes that section 5 of the Decision provides that special working days, duly approved by the Ministry of Labour, may be established in cases in which the nature of the activity so requires. The Committee requests the Government to indicate whether such working days have been approved by the Ministry of Labour and, if so, to provide detailed information on the circumstances, maximum limits to continuous driving hours and working hours and the duration of the daily rest periods required for such special working days.