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

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

The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 30 August 2022, which relate to matters examined by the Committee in the present comment. The Committee also notes the joint observations of the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, received on 1 September 2022, which also relate to matters examined by the Committee in the present comment. The Committee requests the Government to provide its comments in relation to all the observations referred to above.

Direct contacts mission requested by the Committee on the Application of Standards in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that the application of Convention No. 87 by Ecuador was examined by the Committee on the Application of Standards (CAS) at the 110th Session of the International Labour Conference in June 2022. The Committee observes that the discussions and conclusions of the CAS address matters that have a direct impact on the capacity of workers to negotiate collectively their terms and conditions of work, and therefore on the application of the present Convention. The Committee observes in this context that the CAS requested the Government in particular 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; give effect to the road map presented in December 2019 by the ILO technical assistance mission; avail itself of technical assistance from the Office; and accept a direct contacts mission.

Technical assistance. The Committee also recalls that in its previous comment it regretted to note that the Government had not taken action to follow up the technical assistance provided by the Office in December 2019 concerning measures to respond to the comments of the ILO supervisory bodies. The Committee notes that the Government reiterates its interest in receiving technical assistance to reactivate tripartite social dialogue and develop a new road map for this purpose. The Committee expresses the firm hope that, as a result of the dynamic generated by the direct contacts mission requested by the CAS in relation to Convention No. 87 and with the support of the further technical assistance that the Government is interested in receiving, the Government will take specific, effective and time-bound measures, in consultation with the social partners, to bring the legislation into conformity with the Convention in relation to the matters indicated below.

Application of the Convention in the private sector

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. For more than a decade, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination at the time of access to employment. The Committee notes in this regard that the Government has confined itself to reiterating that labour regulations give an adequate level of protection and that it is not necessary to adopt further provisions in this respect. The Committee once again reminds the Government that Article 1 of the Convention prohibits anti-union discrimination at the time of the recruitment of individual workers, so that access to employment is not made subject to the condition that workers shall not join a union or shall relinquish union membership, as well as practices such as ‘blacklisting’ union members to prevent them from being hired. The Committee notes that, according to the indications of the CEOSL, FETRAPEC, UNE and PSI, dismissed union leaders cannot find work and that this difficulty is experienced by any workers, whether or not they are union members, who have taken legal action against their employer, as labour claims are published on the website of the judiciary so that any employer can check whether applicants have made legal claims against previous employers before recruiting them. In light of the above, the Committee once again emphasizes the need for provisions expressly prohibiting acts of anti-union discrimination at the time of access to employment to be included in the legislation and requests the Government to provide information on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that, in accordance with section 221 of the Labour Code, collective labour contracts must be concluded with the enterprise committee or, if one does not exist, with the organization with the largest number of worker members, on condition that it represents over 50 per cent of the workers in the enterprise. The Committee previously urged the Government to adopt the necessary measures to amend section 221 so that, if there is no organization that represents over 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee observes that the Government has confined itself to reiterating that this requirement for the negotiation of a collective contract is closely related to such principles as democracy, participation and transparency, as the benefits obtained in the collective contract apply to all workers in the enterprise or institution. The Committee once again emphasizes that, while it is acceptable for the union which represents the majority or a high percentage of workers in a bargaining unit to enjoy preferential or exclusive bargaining rights, 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 (2012 General Survey on the fundamental Conventions, paragraph 226). The Committee recalls that, even though the requirement of representativeness for signing collective agreements is fully compatible with the Convention, the level of representativeness set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining, as referred to in Article 4 of the Convention. In this regard, the Committee recalls that in previous comments it noted the low rate of coverage of collective bargaining in the private sector. The Committee observes that, according to the information provided by the Government, between May 2021 and June 2022, a total of 37 collective contracts were concluded in the private sector. The Committee observes that the CEOSL, FETRAPEC, UNE and PSI indicate that the Government has not specified whether the figures refer to first collective contracts or revised versions of contracts that have already been concluded. Emphasizing the link between the low coverage of collective agreements in the country and the restrictive requirements set out in law for participation in collective bargaining, the Committee once again urges the Government, after consulting the social partners, to take the necessary measures to amend section 221 of the Labour Code as indicated above. It requests the Government to continue providing information on the number of collective agreements concluded and in force in the country, with an indication of the sectors covered (including the agricultural and banana sector), the number of workers covered and whether they are new or revised collective agreements.

Collective bargaining in sectors composed mainly of small enterprises. The Committee recalls that, in its comments on the application of Convention No. 87, it has been calling for many years for the modification of the following aspects of the legislation, which significantly restricts the capacity of workers to organize in unions: (i) the requirement of a minimum of 30 workers to establish unions and enterprise committees; and (ii) the prohibition on establishing first-level unions composed of workers from different enterprises. The Committee notes with concern that these restrictions on the right to organize, combined with the absence of a legal framework for collective bargaining at the sectoral level, as denounced by the ASTAC, appear to exclude any possibility for workers in small enterprises to exercise their right to collective bargaining. In light of the above, the Committee requests the Government to provide information on the measures adopted to promote collective bargaining in sectors composed mainly of small enterprises.

Application of the Convention in the public sector

Articles 1, 2 and 6 of the Convention. Protection of workers in the public sector who are not engaged in the administration of the State against acts of anti-union discrimination and interference. The Committee previously observed that the Basic Act reforming the legislation governing the public sector (the Basic Reform Act) contained provisions which explicitly protected executive members of public servants’ committees, and it requested the Government to take the necessary measures to ensure that the legislation applicable to the public sector includes provisions that explicitly protect the leaders of all organizations of public employees against acts of anti-union discrimination and interference, as well as provisions establishing dissuasive penalties in the event of such acts. The Committee observes the Government’s reiterated indication that protection against acts of discrimination and the right to establish unions is envisaged in both the Political Constitution and section 187 of the Labour Code, and the Basic Public Service Act (LOSEP), which prohibits any act of discrimination against public servants. The Government considers that the legislative labour principles in force offer an adequate level of protection for public servants. In the same way as the Committee on Freedom of Association, when it examined Case No. 3347, the Committee once again emphasizes the importance of the legislation providing the same type of protection against possible acts of anti-union discrimination and interference for all leaders of all public servants’ organizations. The Committee once again urges the Government to take the necessary measures to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference, and also provisions that establish dissuasive penalties against committing such acts. The Committee requests the Government to provide information on any measures adopted or envisaged in this regard. The Committee also previously noted a ruling issued in 2020 declaring unconstitutional the compulsory redundancy purchase mechanism under which the public administration, in exchange for the payment of compensation, could unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination. The Committee observed that, although the ruling removed the word “compulsory” and the prohibition for persons who have been dismissed to return to work in the public sector, PSI-Ecuador alleged that the Government had not complied with the ruling in respect of the removal of the prohibition to return to work in the public sector. The Committee requested the Government to provide its comments on the matter. The Committee notes that the Government confines itself to recalling the content of the ruling, but does not refer to compliance with the ruling. The Committee also observes that the CEOSL, FETRAPEC, UNE and PSI have sent a list of leaders of associations of public servants who have been dismissed using this mechanism. The Committee once again requests the Government to provide its comments on compliance with the ruling.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. The Committee observed previously that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 did not recognize the right to collective bargaining of public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee also noted that the 2015 amendments to the Constitution excluding the entire public sector from the scope of collective bargaining had been annulled by the Constitutional Court in 2018 and that Ministerial Order No. 373 had been issued in 2019 to give effect to the ruling. The Committee requested the Government to ensure the full implementation of the Order and urged it to intensify its efforts to reopen an in-depth debate with the trade unions concerned with a view to establishing adequate collective bargaining machinery for all categories of employees in the public sector covered by the Convention. The Committee notes the Government’s reiterated indication that, although there are no regulations on collective bargaining machinery for public servants, as this right is only conferred on workers in the sector who are covered by the Labour Code, it undertakes to promote tripartite dialogue and encourage constant discussion on matters of labour law. The Committee notes that, according to the Government, during the period between May 2021 and June 2022, a total of 78 collective agreement were concluded in the public sector. The Committee also notes the indication by the CEOSL, FETRAPEC, UNE and PSI that the Constitutional Court has not yet ruled on the appeals to find unconstitutional the Humanitarian Support Act which, as indicated by PSI-Ecuador, imposes restrictions on collective bargaining by public sector workers governed by the Labour Code. The organizations add that, although on 16 June 2022, the National Assembly approved a Bill repealing the Humanitarian Support Act almost in its entirety, the executive power vetoed the Bill on 20 July 2022. They further indicate that the Government is seeking to introduce in the National Assembly a Bill entitled the ‘Basic Employment Act’, which is reported to contain a provision for the elimination of collective bargaining in the public sector. The Committee notes these various elements and observes with concern that the legislation still does not recognize the right to collective bargaining of public servants, despite the fact that many of them (public sector teachers, employees in the public health system, employees in public enterprises, municipal services and decentralized bodies, etc.) are not engaged in the administration of the State and must therefore benefit from the guarantees provided by this Convention. Observing that the Government has not provided information on specific initiatives for the re-establishment of the rights referred to above and recalling once again that in many countries there are mechanisms that permit the harmonious coexistence of the public sector’s mission to serve the public interest and the responsible exercise of collective bargaining, the Committee urges the Government, in consultation with representative organizations of workers, to take the necessary measures to establish adequate collective bargaining machinery for all the categories of public sector employees covered by the Convention. The Committee requests the Government to report any developments in this respect.