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

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

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.

Individual Case (CAS) - Discussion: 2017, Publication: 106th ILC session (2017)



A Government representative referred to the earthquake of 16 April 2016 and its serious consequences just before the new President of Ecuador took office on 24 May 2017. He stressed the importance that the Government attached to the ILO and its supervisory bodies as well as to the compliance of ILO international Conventions. He said that it was the intention of the new administration to promote dialogue with the social partners and to seek joint solutions to labour issues through a tripartite approach. In the first place, he considered that serious and urgent cases should focus on situations that were of such a nature, and (serious violations of the human rights of trade unionists or their families), not merely administrative matters, such as those which had led to the discussion of the present case. He reiterated the call made by the group of Latin American and Caribbean countries (GRULAC) for cases to be selected on the basis of objective criteria and transparent procedures. The situation required systematic analysis of the whole applicable legal and institutional structure in a manner which addressed the observations and the recommendations of the Committee of Experts, which had not been seen in its treatment. Turning to the issues raised by the Committee of Experts, first in relation to collective bargaining in the public sector, he said that the Government was in compliance with the indications of the Committee of Experts as it guaranteed the right to organize of public sector workers, which could establish trade unions. As proof that collective bargaining had not been eliminated in the public sector, he noted that the national competent labour authority had concluded 35 collective labour contracts since the publication of the constitutional amendments. Second, with regard to the comments of the Committee of Experts that penalties should not be imposed for participation in strikes, he indicated that the crime of the paralysis of a public service set out in section 346 of the Basic Comprehensive Penal Code did not in any event affect the right of association or of social protest, but was confined to punishing the illegal and illegitimate paralysis of a public service, which was in conformity with paragraph 158 of the 2012 General Survey of the Committee of Experts. There were no penalties in the case of strikes, which was a right of workers, although a sanction did exist in the case of the paralysis of public services, which related to a right of society, in accordance with Article 326.15 of the Constitution. Strikes and peaceful demonstrations, within the context of respect for the rights of citizens, were a worker’s right set out in law, without any infringement of international labour Conventions. Third, with regard to the determination of the minimum services that were acceptable to call a strike, he indicated that the institutions responsible for determining minimum services in the event of disagreement between the parties were in compliance with the indications of the Committee of Experts. The labour inspectorate was an institution which exercised a first level of control over the lawful nature of disputes and immediately took on the role of facilitating the various processes, in agreement between workers and employers. In the case that no agreement was reached, a conciliation and arbitration board would be set up with representatives of workers and employers, to ensure total impartiality and the participation of the parties to the dispute. He added that the determination of an acceptable level of minimum services before a strike was called was necessary to guarantee the normal operation of basic services. The Government would, in any case, examine the possibility of adopting the recommendations of the Committee. Fourth, with regard to compulsory arbitration contained in Article 326.12 of the Constitution and Article 565 of the Labour Code which specified the procedure to follow for the resolution of collective labour conflicts, he considered that recourse to arbitration in collective disputes removed the possibility that matters covered by arbitration would be submitted to the courts, allowed the participation of the parties in the conciliation body and reduced the level of labour conflict. There was no evidence that the removal of arbitration reduced the level of labour conflict or affected further bargaining. Finally, he noted that the procedure of the compulsory purchase of redundancy was regulated, and its application was based on constitutional and legal provisions, and as such did not have the effect of anti-union discrimination.

The Worker members recalled that in 2016 the Committee had discussed the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), by Ecuador. With respect to the right to freedom of association, they referred to Case No. 2970 of the Committee on Freedom of Association, in which it was noted that the Government had gradually started dismantling the collective rights of public sector workers. An ILO technical mission had visited Ecuador in January 2015 and issued a number of recommendations, including on the right of public sector workers to establish trade unions of their own choosing. However, since then the situation had become worse. The Committee of Experts had repeatedly expressed concern over the limitations on the right of workers to establish organizations of their own choosing without previous authorization by state bodies. Regrettably, the Government had failed to amend Article 326(9) of the Constitution, which provided that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization. Moreover, despite numerous requests by the ILO supervisory bodies and the 2015 ILO technical mission, the Government had continued to refuse the registration of the National Federation of Education Workers (UNE). The UNE had applied for registration in January and July 2016. However, both applications had been refused. On 18 August 2016, the Government had ordered the dissolution of the union and the confiscation of its assets. This decision had drawn heavy criticism from the special procedures of the United Nations Human Rights Council. Referring to the comments of the Committee of Experts, the Worker members called on the Government to take measures to immediately register the UNE and review its legislation in order to prevent the administrative dissolution of trade unions for expressing views on economic and social policy. The anti-union climate in the public sector was further aggravated by prison sentences imposed on workers in the public sector who engaged in peaceful strike action under section 346 of the Basic Comprehensive Penal Code. The restrictions on the right to freedom of association were sadly not limited to the public sector. The national legislation imposed excessive requirements with respect to the minimum number of workers required for the establishment of workers’ organizations in the private sector. A legal provision introduced in 1985 had increased the minimum number of workers required to establish a union from 15 to 30. Most enterprises in Ecuador had fewer than 30 workers. The Government justified this provision by arguing that the minimum number of workers required to establish unions was kept high intentionally in order to ensure the representative nature of enterprise committees. While this might be a legitimate consideration when it came to the recognition of trade unions for collective bargaining, it was not an acceptable argument in relation to the establishment of trade unions. Furthermore, strict compulsory time limits on the convening of trade union elections infringed the right of workers to determine the rules governing the administration and elections of their unions. Trade union elections were an internal matter and needed to be regulated through union statutes. Thus, the compulsory time limits set by law constituted a violation of the Convention. In addition, workers who were not union members continued to be granted the right to stand for election as officers of enterprise committees under section 459(3) of the Labour Code. The Worker members stressed that the rules governing the election of Worker representatives should be set by the committees themselves and should not be imposed by law. This issue had still not been addressed by the Government despite repeated calls by the ILO supervisory bodies. The Worker members were deeply troubled by the lack of compliance with the Convention and the specific recommendations of the Committee of Experts. The Government was therefore urged to give serious consideration to the issues that had been raised on numerous occasions and to engage in tripartite dialogue at the national level.

The Employer members recalled, first, that they disagreed with the position of the Committee of Experts on Convention No. 87 and the right to strike. They added that the statement made by the Government group in March 2015 indicated that: “The scope and conditions of this right are regulated at the national level.” They also expressed concern at the present case, in view of the number of times that it had been considered and that it involved a fundamental Convention. With regard to the application of the Convention in the public sector, they considered it dangerous for the Government to claim that the purpose of Article 326(9) of the Constitution was to avoid the disorderly proliferation of workers’ organizations since, according to the Committee of Experts, this position ran counter to Article 2 of the Convention. Trade union unity imposed by law, whether directly or indirectly, was in violation of the principles of freedom of association. Although such unity was desirable, it was a matter to be decided by the trade unions themselves using the methods they considered most fitting. However, it should also be borne in mind that Article 326(7) of the Constitution guaranteed the right and freedom of workers to establish trade unions, federations, associations and other forms of organization. More information was needed from the Government to understand exactly whether public sector workers in Ecuador enjoyed that constitutional guarantee in practice and established trade unions without any restriction. With regard to Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015, which introduced the option of administrative dissolution for certain professional associations of public servants, they shared the view of the Committee of Experts. They agreed that the professional nature of such associations gave them the character of trade unions that was needed to enjoy protection under Convention No. 87, and that the above provision was in violation of Article 4 of the Convention. With regard to the observations of the Committee of Experts concerning the Basic Comprehensive Penal Code, the Employer members had decided not to comment on the issue in view of the reservation expressed at the beginning of their statement. With regard to the application of the Convention in the private sector, they recalled that the Committee of Experts took as its starting point the principle that workers should be free to establish the organizations of their own choosing and that the requirement for a reasonable level of representativity to sign collective agreements was not in contradiction with the ILO Conventions on freedom of association. With regard to the recommendation of the Committee of Experts to review the legal provisions concerning one of the institutions of collective labour law, they considered that the Government and the social partners should be called on to engage in social dialogue with a view to undertaking a comprehensive revision of all the elements of collective labour law. Bearing in mind that amending one provision in isolation always had repercussions on the others, the reform should be comprehensive so as to avoid creating a dysfunctional system. With regard to the deadlines for calling trade union elections, they shared the concern expressed by the Committee of Experts that elections were an internal matter for the organizations concerned and should be governed by their by-laws, and the Government should provide more information on the application of this provision in practice. They also shared the concern of the Committee of Expert at the violation of the principle of the independence of workers, as contained in Article 459(3) of the Labour Code, as only workers affiliated to a workers’ organization were entitled to decide on its governance structure. Finally, they emphasized that the Government and the social partners should undertake a comprehensive revision to ensure that the legal system was internally consistent, and should avoid isolated reforms that could result in contradictions with or violations of other international treaties.

The Worker member of Ecuador emphasized that the Government had maintained a firm and radical position on the right to freedom of association of workers, allowing them to establish associations, trade unions and federations. However, he recalled that those rights carried with them obligations and that in order to defend labour rights it was necessary to follow legal procedures. With regard to the UNE, he said that its members were public servants protected by the Basic Act on the Public Service and the Basic Act on Education and Intercultural Issues, but that they were not protected by the Labour Code. He recalled that the UNE had been founded in 1950 by agreement with the Ministry of Education and that, as such, if its members considered that their rights had been violated, they should take the appropriate legal action. He added that UNE members enjoyed the right to freedom of organization, in accordance with Article 326(7) of the Constitution of Ecuador. Lastly, he recalled that Ecuador had ratified 61 ILO Conventions, and invited the UNE to initiate dialogue with the new Government to resolve the current situation.

The Employer member of Ecuador recalled that freedom of association for workers, whether in the public or private sector, included the right to establish organizations of any kind, and that workers’ organizations could only be dissolved by the will of their members. The Act governing the establishment of workers’ organizations distinguished between the various types of organization and the minimum requirements for their establishment, with the aim of meeting the representativity requirement. In his opinion, freedom of association was not restricted by the fact of a country’s internal legislation imposing requirements to guarantee a minimum level of representativity. He considered that the Committee of Experts was using a mistaken premise when it said that “the requirement of a minimum number of 30 members to establish enterprise unions in countries in which the economy is characterized by the prevalence of small enterprises hinders the freedom to establish trade unions.” In Ecuador there were 5,860 workers’ organizations, 72 per cent of which were in the private sector. Over the past decade, 83 organizations had been established every year, while in the preceding 68 years, the figure had barely reached 31. He emphasized that the root cause of the problem of unionization lay outside the formal economy. Any observation relating to freedom of association should be discussed with interest groups and in the general report of the collective bargaining institution, with a view to identifying its effects objectively and rationally, as recommending a change without consultation would seriously affect job creation and threaten the sustainability of the formal sector.

The Government member of Malta, speaking on behalf of the European Union (EU) and its Member States, as well as Albania, Bosnia and Herzegovina, Montenegro and Norway, said that the EU attached great importance to human rights, including freedom of association and trade union rights, and recognized the important role played by the ILO in developing, promoting and supervising international labour standards. The EU was actively engaged in promoting the universal ratification and implementation of the core labour standards, as part of its Action Plan on Human Rights, adopted in July 2015. The recent accession of Ecuador to the EU trade agreement with Colombia and Peru was welcomed. It was recalled that this agreement included commitments to effectively implement the fundamental ILO Conventions. He expressed concern at the allegations made by the trade unions reporting police violence in the context of a peaceful demonstration following the adoption on 3 December 2015 of amendments to the national Constitution, and the arbitrary detention of several persons, including the President of the Confederation of Workers of Ecuador, Mr Edgar Sarango. Referring to the comments of the Committee of Experts, three points should be highlighted: (i) the impossibility of establishing more than one trade union in state bodies; (ii) the fact that associations of public servants were subject to administrative dissolution or suspension; and (iii) the imposition of penal sanctions on workers participating in a peaceful strike. With respect to the first point, the Government was urged to ensure that the new provisions of the Bill to amend the legislation governing the public sector would fully respect the right of public servants to establish organizations of their own choosing for the collective defence of their interests. Second, the Government was urged to amend the legislation and to take the necessary measures to ensure that occupational associations of public servants were not subject to dissolution, which prevented them from fully exercising their mandate of defending their members’ interests. The EU also called on the Government to revoke its decision to dissolve the UNE in order to allow it to immediately exercise its activities. Third, as to the imposition of penal sanctions on workers participating in a peaceful strike, the Government was urged to amend the provisions of the Basic Comprehensive Penal Code commented on by the Committee of Experts so as to bring it into conformity with the Convention. In relation to freedom of association in the private sector, the EU called on the Government to take the following measures, as requested by the Committee of Experts: (i) amend the Labour Code to reduce the minimum number of members required to establish workers’ associations and enterprise committees; (ii) amend Ministerial Decision No. 0130 of 2013 to ensure that the consequences of any delay in convening trade union elections were set out in the by-laws of the organizations themselves; and (iii) with regard to the election of workers as officers of the enterprise committee who were not trade union members, amend the Labour Code in order to bring it into compliance with the principle of trade union autonomy. It was also suggested that the Government facilitate the organization of trade unions at the sectoral level. In conclusion, the EU called on the Government to avail itself of the ILO’s expertise and to comply with its standards-related obligations.

The Government member of Panama, speaking on behalf of the group of Latin American and Caribbean countries (GRULAC), thanked the Government for the information it had provided on the application of the Convention and highlighted the commitment to the ILO’s supervisory system expressed by the current Government, which had taken office on 24 May 2017, as well as its call to the social partners to engage in dialogue. The Government’s replies had clarified issues on which the Committee of Experts had requested further details. In that regard, the Government had indicated that, by virtue of the amendment to Article 229 of the Constitution and the reform of Article 247 of the Labour Code, the right to freedom of association for workers in the public sector was guaranteed. Similarly, Ecuador had shown that collective bargaining had not been eliminated in the public sector, as demonstrated by the 35 collective agreements signed between public sector employers and workers since the Constitutional amendment had been published in December 2015. With regard to the comments of the Committee of Experts that penalties should not be imposed on those who participated in peaceful strikes, the Government had clarified that such a situation would only occur if there was an illegal and illegitimate interruption of a public service that fell outside the relevant procedures for the exercise of the right to strike. Among the progress that Ecuador had made in labour matters, emphasis should be placed on the Labour Justice Act, which had entered into force on 20 April 2015, and included concepts such as unjust dismissal to protect trade union leaders carrying out their activities as representatives of workers’ organizations. He reiterated GRULAC’s call to the Committee of Experts to select cases for discussion by the Conference Committee using objective and transparent mechanisms that took into account the severity of the facts and to ensure that their recommendations were clear, concise and, above all, achievable.

An observer representing Education International (EI) expressed regret at having to appear before the Committee once again to describe the systematic violation of the trade union rights of UNE and the process of its destruction by the Government. She claimed that the Government had: (i) revoked UNE’s right to check off union dues in 2009, and had still not restored that right despite calls from the ILO; (ii) denied registration of the new UNE board, despite it having met all the necessary requirements; (iii) proceeded, on the basis of Executive Decree No. 739 of 12 August 2015, to the administrative dissolution of UNE, in violation of Article 4 of Convention No. 87; (iv) closed offices and requisitioned two of UNE’s main buildings in Quito and Guayaquil, with the intervention of the national police; and (v) liquidated assets that had belonged to UNE for 73 years, initiating the sale of various buildings. She added that the Government had created, financed and promoted a different organization, known as the Teachers’ Network, which was the only organization of primary school teachers in the country recognized by the Government as being representative, despite the fact that it was presented abroad as merely an educational organization. In recent years, the Government had dismissed more than 20 union officials because of their union activities, the most recent cases being those of Juan Cervantes, national Vice-President (August 2016) and Glenda Soriano, President of UNE in Guayas (March 2017). She requested the Committee to appoint a high-level tripartite mission to verify the information provided and to urge the Government to restore the long list of UNE rights that had been violated, including its right to administer the pension fund. She emphasized that dialogue was the best way of resolving disputes and finding lasting solutions, and she hoped that the route of dialogue would avoid another appearance before the Committee the following year.

The Government member of Cuba agreed with the statement by GRULAC. She recalled the social progress made in Ecuador, as reflected in the reduction of poverty, the inclusion of vulnerable groups in national life and support for girls, adolescents and women. She indicated that labour issues in Ecuador focused on the eradication of the worst forms of child labour and the establishment of social security for women performing unpaid work in the home and those in domestic work. She emphasized that the Government had repeated its call to the social partners to initiate a social dialogue, and that it was necessary to grant the new Government time to resolve the issues raised.

An observer representing Public Services International (PSI) said that he was also speaking on behalf of 11 trade union federations and two trade union confederations in the public sector, which were affiliated with PSI in Ecuador, and on behalf of the United Workers’ Front (FUT) and eight allied organizations from the public sector, which represented workers in universities, the legislative body, the electricity sector and firefighters. He regretted that all of these organizations had been adversely affected by the labour counter-reform in the public sector, which had been carried out by the Government over the preceding ten years. He emphasized that violations of Articles 2, 3 and 4 of the Convention were systematic in Ecuador, and had become the policy of the previous Government. The Government had interfered in trade union organizations through threats, dissolution and the imposition of conditions on their action plans, as noted by the Committee of Experts on various occasions. Furthermore, in October 2008, an administrative and unilateral review of all public sector collective agreements had been initiated, on the pretext of removing clauses that were considered privileges, with no possibility of recourse, and no referral to the courts. Nevertheless, he expressed his willingness to pursue a process of dialogue with the Government of Ecuador, which would include workers from all sectors in Ecuador, with emphasis on public employment, and with ILO assistance, which would be binding in nature. He urged the Government to accept an ILO tripartite mission as the beginning of a new stage of dialogue.

The Worker member of Colombia expressed concern at the complaint submitted to the Credentials Committee of the International Labour Conference by six national trade union confederations because they had not been taken into account with a view to participation in the Conference. He emphasized that Governments needed to comply with ILO Conventions, irrespective of their political views. He considered that Article 326(9) of the Constitution of Ecuador was contrary to trade union pluralism and recalled that the Committee of Experts had urged the Government to take the necessary measures immediately to ensure that, in accordance with Article 2 of the Convention, the legislation fully respected the right of public servants to freely establish organizations of their own choosing. He added that the legislative reform of 1985, which had increased the minimum number of workers required to establish a trade union from 15 to 30, had resulted in a decrease in the number of trade unions. Lastly, he considered it necessary to request the ILO to carry out a tripartite mission.

The Government member of Switzerland indicated that her country supported the statement made by the European Union. She emphasized that the independence and freedom of the social partners were essential to achieve effective social dialogue and to contribute to economic and social development, in both the public and private sectors. Expressing concern about the restrictive rules governing social dialogue and the interference of the State in the affairs of the social partners, she encouraged the Government to follow the recommendations of the Committee with a view to guaranteeing freedom of association, in both law and in practice.

The Government member of Nicaragua endorsed the GRULAC statement and thanked the Government for the information provided, which had clarified some matters on which the Committee of Experts had requested further details. In that regard, he recalled that the Government had replied to the comments and observations of the Committee of Experts on various occasions but that, even so, its replies had not been taken duly into account. For example, questions were being asked about the fact that, under Ecuadorian legislation, a minimum of 30 people was required to establish a trade union, when in other countries, the minimum required was higher. At the same time, the fact that the current Government had taken office only recently meant that it should be given time to assess the labour situation in the country. In that regard, he welcomed and reiterated the Government’s call to the social partners to engage in tripartite dialogue.

An observer representing the Confederation of Workers of Universities of the Americas (CONTUA), also speaking on behalf of PSI, while highlighting the awkwardness of raising difficult political issues against a Government with which it shared many objectives, said that nothing could justify failure to comply with international labour standards, which were the basis of labour rights. There were serious problems in Ecuador regarding collective labour relations, including explicit interference, specifically coordinated by the Government, with trade unions through laws, intimidation and anti-union discrimination which aimed primarily at undermining independent trade unionism. These policies had resulted in the imposition of penalties and dismissals, particularly on public sector trade union leaders, the almost complete eradication of public sector collective bargaining, and the extremely serious situation of UNE. Despite that critical situation, the arrival of a new Government in Ecuador could be a positive sign. The Government was therefore called on to be open to dialogue and a tripartite mission. He noted the forthcoming visit to Ecuador of the PSI General-Secretary, Rosa Pavanelli, from 16 to 22 June, to meet the Ecuadorian authorities at the highest level and support affiliated trade unions and professional organizations, with a view to restoring rights.

The Government member of the Plurinational State of Bolivia endorsed the GRULAC statement. He emphasized that both the Constitution and the national legislation fully guaranteed the right to freedom of association and suggested that the Committee of Experts should be more meticulous and exhaustive in its methods of work, especially when it questioned the content of constitutional provisions. With regard to Article 346 of the Basic Comprehensive Penal Code, he considered that this provision did not imply the criminalization of strikes, but of violent acts that interrupted public services. The provision should be interpreted in the light of the principle of last resort, and in accordance with human rights instruments, as required by sections 3 and 13.1 of the Penal Code. With regard to the dissolution of trade union organizations, he said that, by law, dissolution could only be requested by the members of trade union organizations, and not by the State or employers. He considered that an erroneous interpretation of the Convention that did not allow for any margin of discretion or regulation by the legislative bodies with respect to the exercise of freedom of association, did not contribute to social dialogue, and could damage trade unions themselves. He highlighted the Government’s efforts to safeguard the right of citizens to have access to public services without any hindrance, and considered that an appropriate balance had been struck in Ecuador’s current legislation. Lastly, he said that the increase in the number of registered trade union organizations demonstrated the Government’s commitment to freedom of association.

The Worker member of Italy, also speaking on behalf of the Worker members of Austria, Belgium, Honduras and the United States, drew the Committee’s attention to specific violations of the application of the Convention regarding banana workers in Ecuador. The banana sector was central to Ecuador’s economy. However, the banana plantation structure was characterized by a large number of small (0–30 hectares) and medium-sized (30–100 hectares) producers, as approximately 79 per cent of all producers nationwide had farms that did not exceed 30 hectares and in many of them, the number of workers was under 30. Even in larger farms with more than 30 workers, many workers were often not employed directly by the farm, but had been subcontracted to undertake specific tasks such as packaging or fumigation. It was clear that this practice of subcontracting or limiting the number of employees to fewer than 30 was an elusive measure to prevent workers from attaining the legal number for the creation of a union. Despite the comments of the Committee of Experts, gross violations of freedom of association continued and the national legislation remained unchanged. Given the very specific structure of the Ecuadorian economy, the prerequisite of 30 workers to create a union was far too high and consistently denied freedom of association to hundreds of thousands of workers. The Government was therefore urged, in consultation with the social partners, to take the necessary measures to amend the Labour Code, and particularly sections 443, 452 and 459, to reduce the minimum number of members required to establish workers’ associations and enterprise committees. The Government was also requested to set up an independent inquiry regarding the high number of anti-union actions relating to the establishment of trade unions at the company level and to undertake remedial action without delay, including in relation to the application to register trade unions. Without any further delay, the Government needed to apply the ILO Conventions it had ratified and the international rules to which it had subscribed.

The Government member of the Bolivarian Republic of Venezuela expressed agreement with the GRULAC statement and took note of the updated information provided by the Government, which demonstrated its commitment to the ILO supervisory system. He welcomed the Government’s willingness to engage in dialogue with the social partners and recalled that, under Article 8 of the Convention, in exercising the rights provided for in the Convention, workers and employers and their respective organizations, like other persons or organized collectivities, should respect the law of the land. He welcomed the Government’s invitation to engage in dialogue and expressed his conviction that, by that means, solutions would be reached on the basis of tripartite agreement. Lastly, he expressed the hope that the Committee’s conclusions resulting from the debate would be objective and balanced, which would enable the Government to consider and assess them within the framework of the Convention.

The Government member of Canada indicated that her Government placed great importance on Convention No. 87 and strongly encouraged all member States to respect its provisions. In its comments, the Committee of Experts had noted a number of issues in Ecuador in relation to the application of the Convention. Moreover, in 2015 the ILO had made several recommendations following an expert mission to the country. Among these recommendations, the mission had urged the Government to register a new executive board for the UNE. The UNE had repeatedly tried to register its new board on several occasions without success. She was also concerned at the use of Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015, to dissolve the UNE in August 2016, and that in March 2017, these Decrees were presented in draft legislation to the National Assembly to allow for greater state powers to dissolve non-governmental organizations. The Government was encouraged to ensure that any new legislation operated in conformity with the Convention to guarantee freedom of association and the right to organize.

The Government representative thanked all those who had participated in the discussion. Firstly, with regard to trade union organizations of public sector workers, he referred to the Basic Act to reform the legislation governing the public sector, published on 19 May 2017. The Act guaranteed the right to equality, freedom of association and to strike, and consequently addressed one of the concerns raised by the Workers. Second, with regard to unions in the private sector, he indicated that the issue of the minimum number and the extension of the time limits for the process of changing trade union executive bodies would be analysed taking into account the concepts of full employment, inadequate employment and the social capital of undertakings, in addition to the numerical and time requirements in each case. Third, with reference to the issue of the UNE, he said that the necessary administrative measures would be assessed so that the dispute with the Ministry of Education was addressed appropriately, although noting that the Ministry of Labour did not have a register, and had not initiated regularization or re-establishment procedures. Fourth, he called on all workers and employers to engage in a constant process for the reinforcement of tripartite dialogue. For that purpose, a national meeting would be convened with a view to designing, formulating, agreeing upon and implementing a minimum agenda of social dialogue, together with its tools, time limits and content. He hoped that, in exchange, the workers and employers would issue a formal statement on this subject. The Government would request the ILO to participate in the launching of technical labour round tables, and in the design of tripartite training programmes for the application of Conventions. Finally, he indicated that, from the moment that Ecuador became aware of its inclusion in the list of countries with double footnoted cases, at least five consultation meetings had been held at various levels with ILO officials, including meetings with Employer and Worker representatives at the Conference, with whom initial constructive contacts had been established.

The Employer members thanked the Government for the information provided. They recognized the efforts that the new Government was making, having taken up the reins of public administration only recently, but recalled that this circumstance was not an excuse for failing to comply with the country’s commitments to the ILO. They considered that there were areas in which the Government could still provide further information on the application of the Convention in practice: specifically, the possibility for public sector workers to establish one or more workers’ organizations in each administrative department at their own free will, as provided for in Article 326(7) of the Constitution and as developed in recent legislation adopted in May 2017. They urged the Government to provide a detailed report on that subject by 1 September 2017. They agreed that some labour standards should be reviewed, but on the basis of a comprehensive approach, without affecting the collective institutions established in labour law. This should be undertaken within the framework of social dialogue, through due consultation with the National Wage and Labour Council, on the basis of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). They concluded by recalling that the conclusions in the case should only cover those subjects on which there was agreement.

The Worker members sincerely hoped that the recent election in Ecuador would mark a turning point and the start of a full and frank dialogue with the country’s social partners in order to achieve progress towards a number of serious and long-standing issues. The commitment expressed by the Government to start a process of consultation with the trade unions concerned in order to address the issues raised by the Committee was welcomed. Workers should not be obliged to join an organization established by law. Workers, both in the public and private sector, must have the right to freely pursue their collective interests. Moreover, the dissolution of the UNE was deeply troubling. The Worker members urged the Government to register the UNE without further delay, and to take the necessary measures to prevent the dissolution of workers’ organizations for expressing their views on broader social and economic policies. Furthermore, section 346 of the Basic Comprehensive Penal Code should be amended and the Government was urged to refrain from criminally prosecuting peaceful participation in strikes. No worker should have to face criminal charges and penalties unless he or she committed violence or engaged in other serious violations of penal law. In addition, a number of laws in the country created enormous obstacles to the free functioning of trade unions in the private sector. In this regard, the Government should review and amend sections 443, 452 and 459 of the Labour Code and lower the minimum requirement to a reasonable number in consultation with the social partners. Questions relating to the internal rules and administration of trade unions should be left to workers and should not be set by law. The compulsory time limits for the election of trade union officials under section 10(c) of Ministerial Decision No. 0130 of 2013 and the election of non-union members as workers’ representatives in enterprise committees under section 459(3) of the Labour Code required the close attention of the Government. Those provisions must be amended to be brought into line with the Convention. The Worker members expressed their disappointment at the lack of progress on those issues. Constructive social dialogue required the recognition of independent trade unions in all sectors of the economy. The Government was therefore urged to bring its law and practice into line with the Convention without any further delay.

Conclusions

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

Taking into account the expressed views, the Committee called upon the Government of Ecuador to:

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

- revoke the decision to dissolve the UNE and to allow the free functioning of the trade union;

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

- initiate a process of consultation with the most representative employers’ and workers’ organizations to identify how the current legislative framework needs to be amended in order to bring all the relevant legislation into compliance with the text of Convention No. 87.

The Committee invited the Government to consider availing itself of ILO technical assistance in relation to the legal reform process. The Committee invited the Government to report progress in relation to the abovementioned recommendations to the Committee of Experts in 2017.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

A Government representative, Minister of Labour, thanked the Committee for having the opportunity to speak in front of it and declared that there were no problems of violations of workers' rights in Ecuador. The State respected and guaranteed trade union rights and freedom of association could be seen through the existence of bodies devoted to negotiation. He mentioned the following points concerning the draft legislation prepared by the technical assistance mission (referred to in the report of the Committee of Experts) which visited Ecuador in 1997:

-- concerning the amendment of the Civil Service and Administrative Act made so that civil servants could establish trade union organizations, he stressed that the workers concerned already had the right to organize. In Ecuador, there was a legislative overlapping between the Act and the Labour Code. The Civil Service Act gave a greater protection to those covered by it vis-à-vis the protection granted to other workers by the Labour Code. If one made the necessary amendments, this would imply in fact a regression. He invited a mission to go to the country to undertake a legal analysis which would confirm that there was an overlap;

-- concerning the repeal of section 60(g) of the same Act which prohibited civil servants from striking or supporting or participating in strikes, and from establishing trade unions, he stated that the Ecuadorean Constitution guaranteed the existence of trade unions. There could only be one trade union for each state entity, which did not imply that workers did not benefit from the right to organize. Concerning the right to strike, he stated that if strikes were authorized in the public sector, a minority would endanger the rights of the majority since, unlike in the private sector, there was no question of balancing the forces between employers and workers. Workers enjoyed the right to strike within the existing framework and there was compulsory mediation to resolve problems. He considered that a mission could make a note of this reality and that in this case also, there was an overlapping of legal institutions;

-- concerning the requested amendment of section 441 of the Labour Code so that in the event of refusal of registration, the trade union or association in question could appeal to the competent judicial authorities, he pointed out that the Labour Code stipulated that if the Labour Minister did not decide on a request for registration within 30 days, the trade union would be registered automatically. The amendment proposed was a violation of freedom of association;

-- concerning the amendment of section 443(11) of the Labour Code to the effect that organizations of a higher level enjoyed the right to express their opinions on the Government's economic and social policies, he stated that there was no trade union which did not have a provision in this respect in their by-laws, and that in Ecuador everyone could express their opinions and provisions were not needed in this regard since this right was enshrined in the Constitution;

-- concerning the requirement to be Ecuadorean in order to serve as a trade union official (section 455(4)), he stated that in Ecuador, the right to work was recognized for everyone and he did not know if that right was a labour or a political guarantee. A study needed to be carried out in this respect;

-- concerning the amendment of section 461 of the Labour Code on the dissolution by administrative measures of a works committee, he indicated that it was not necessary to appeal to a judicial body. The administrative channels provided for had to be used;

-- concerning the minimum service in the event of a strike (section 69 of Act No. 133), he stated that one had to find a clearer text than that which was proposed as an amendment;

-- concerning the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes, he pointed out that due to the wording of this Decree and the existing confusion between work stoppages and strikes, this Decree was not applied and was outdated. Being contradictory, it was never applied. There was no positive outcome of the steps taken before Congress to repeal this Decree. Consequently, an action should be instituted so that the judicial authorities declared this Decree to be unconstitutional;

-- concerning the need to reduce the minimum number of workers needed to be able to establish associations or works committees, he indicated that it was necessary for a committee to carry out a quantitative statistical study to determine the number which should be fixed;

-- concerning the need for civilian workers associated with or dependent on the armed forces to enjoy the right to join trade unions, he stated that a study would have to be carried out of the cases mentioned by the Committee of Experts;

-- concerning the deprival of the guarantee of stability to workers who took part in a solidarity strike (section 65 of Act No. 133), he pointed out that in Ecuador, there was no possibility of dismissing workers who respected the provisions pertaining to solidarity strikes;

-- concerning the implicit refusal of the right to strike for federations and confederations (section 491 of the Labour Code), he indicated that this refusal did not exist in the legislation. The possibility for works councils to declare a strike under the terms of the Labour Code did not constitute an implicit refusal. If there were no works councils, there was no violation of the right to strike; over 50 per cent of the workers in an enterprise could declare a strike.

Finally, he stated that the Ecuadorean Government was ready to comply with ratified Conventions.

The Employers' members noted that the Government representative had tried -- in a strange way -- to make this Committee believe that national legislation was in conformity with the requirements of Convention No. 87. The Government representative had not succeeded, especially in light of the report of the Committee of Experts which indicated the contrary. During an ILO mission in 1997, two Bills had been drafted providing for the repeal or amendment of certain legislative provisions which were the subject of comments by the Committee of Experts. The drafting of these two Bills constituted a positive approach to bringing national legislation into conformity with the provisions of the Convention. The content of these Bills had been described in detail in the report of the Committee of Experts and pertained essentially to the establishment and registration of trade unions, but also to the right of trade unions to organize their administration and activities as well as their right to express their opinions on the Government's economic and social policies in a peaceful manner. A control system should also have been established.

The question regarding the right to strike had been discussed. While the Employers' members differed from that of the Committee of Experts in this area, that did not prevent States from following the observations made by the Committee of Experts in this domain. In conclusion, it was clear that amendments to legislation should be carried out. For this reason it was surprising that these Bills had not been mentioned at all. On the contrary, the Government representative had tried to show that there had been no need for amendments to legislation which, in the view of the Employers' members, represented an improved situation. Apart from the Committee's stance concerning the right to strike, they endorsed the Experts' view that freedom of association and protection of the right to organize did not exist in Ecuador and that legislative changes were necessary. Therefore the Government should be urged by this Committee to review its current legislation urgently.

The Workers' members thanked the Government representative for the information he had provided. They recalled that this case had been discussed by the Committee on numerous occasions in 1985, 1987, 1988, 1992 and 1993. Several of the matters raised by the Committee of Experts had been dealt with in its report for a long time and had even been the object of special paragraphs in the past (in 1988 and 1989). Since then, several direct contacts missions and technical assistance missions by the ILO had been conducted in Ecuador in order to contribute to bringing the legislation into conformity with the Convention. Very limited progress had been made in 1991 through the adoption of Act No. 133 amending the Labour Code. However, very substantial discrepancies between law and practice on the one hand, and the Convention on the other, subsisted. This was why this Committee discussed this case in 1993. Since then, a new mission of technical assistance of the ILO had been conducted in Ecuador from 4-8 September 1997. This mission contributed to the drafting of two Bills aimed at improving the conformity between legislation and the Convention. Since then, however, the Workers' members, as well as the Committee of Experts, had noted that the Government did not refer to these two Bills in its report. On a more serious note, the Government had informed the Committee in its report that Bills dating from 1989 had been taken up again and submitted to Congress. This definitely constituted a large step backwards. The Workers' members could not accept such an attitude. It demonstrated a lack of a true political will to cooperate with the supervisory bodies. The entire Committee had always reacted against such an attitude. Technical assistance and direct contacts missions of the ILO were not intended to serve as a means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions. The Workers' members stressed that the discrepancies between law and practice on the one hand, and the Convention on the other, concerned very important issues. The Committee of Experts recalled them in its report. They included the following: the refusal to grant civil servants and employees in the armed forces the right to associate freely; the lack of efficient and independent remedies against refusals to register a trade union; the high number of members required to set up a trade union which raised concern in a system of enterprise trade unions; the substantial limitations for federations and confederations of the right to take action, including the right to call a strike; and administrative dissolutions of trade unions. Should the Committee of Experts not be able to note real progress before its next session, in particular, by the submission to and adoption by the National Congress of the Bills drafted in September 1997 and accompanying legislation, the present Committee would have to reconsider this case next year. During the Conference in 1999, the Workers' members would request that the conclusions be drafted and presented in a different way in the report. They demanded that the present conclusions reflected the concerns expressed and positions taken.

The Worker member of Ecuador indicated his full agreement with the comments of the Committee of Experts and thanked the Minister of Labour of his country for being present. For several years, observations, comments and direct requests had been addressed to the Government of Ecuador by the Committee and the supervisory bodies with a view to bringing law and practice into conformity with Convention No. 87. Following these demands, the Government had promised on several occasions to take the required measures to adopt the necessary legal reforms. Up until 1990, the comments by the Committee of Experts concerned the following legal provisions: the prohibition for civil servants to set up trade unions, to negotiate collective agreements and to go on strike; the prohibition for trade unions to involve themselves in political or religious activities; the obligation to be Ecuadorean in order to serve as a trade union official; the dissolution by administrative measures of works committees; the imposition of prison sentences on instigators of collective work stoppages and strikes; and the implicit refusal of the right to strike for federations and confederations. The fact that the Government had not honoured its undertakings caused the case of Ecuador to be referred to in special paragraphs in 1983, 1988 and 1989. For its part, the ILO had provided the assistance requested by the Government by way of conducting direct contacts missions in 1985 and 1989, and by way of providing the technical assistance mentioned by the Committee of Experts in its report. The Government had not followed up on any of the recommendations elaborated during these missions and, instead of the expected progress, new laws had been adopted which deteriorated the situation causing a questioning of the seriousness and credibility of the Government before the Conference Committee. In its report of 1991, the Government indicated that six Bills had been submitted to Congress including the Bills to amend the legislation with a view to bringing them into conformity with Convention No. 87. However, a few months after having submitted its report, the Government adopted Act No. 133 containing provisions which violated the principles of freedom of association and collective bargaining. The provisions of this law resulted in comments by the Conference Committee in 1992. More specifically, the comments concerned: the increase of the number of workers required to set up a trade union at the enterprise level which was raised from 20 to 30 (in Ecuador 60 per cent of the enterprises have less than 30 employees); the requirement that strikes be declared 20 days ahead of time; and the obligation that a minimum number of workers should continue to work in the enterprises during strike, which minimum would be determined by the Ministry of Labour should the parties not reach an agreement. This implied that in the public sector the Minister of Labour was at the same time a judge and a party.

In subsequent reports the Government indicated that it would insist that Congress follow up on the relevant draft law. During the months of January, June and July, 1996, however, the restrictions imposed on public servants for the establishment of unions and the negotiation of collective agreements and the declaration of strikes were incorporated in the Constitution. At the same time, a provision stipulating that "for industrial relations purposes in the public sector the workers will be represented by a unique trade union organization" was incorporated in the Constitution. Moreover, during September 1997, the Minister of Labour once again asked Congress to study six drafts presented in 1990 including one draft providing for the repeal of Decree No. 105 cited above. Contrary to what was stated by the Minister of Labour, Decree No. 105 was applied to trade union leaders in November 1997. Moreover, on 21 November of the same year, this Decree -- which allowed for the imposition of prison sentences in case of paralysis of activities -- was raised to the level of a constitutional provision. All these facts demonstrated the absence of the Government's political will to respect the provisions of Convention No. 87 in spite of the recommendations, comments and observations of the Conference. Instead of progress, there had been regression, in spite of the fact that the International Labour Office had invested human resources without obtaining the desired results. The Conference Committee had shown patience and unlimited tolerance and the persistence of such a situation could harm the efficiency of the supervisory machinery of the ILO. The speaker demanded that adequate measures be taken by the Government of Ecuador to modify the constitutional laws which were contradictory to the provisions of Convention No. 87.

The Worker member of Argentina stated that the report of the Committee of Experts contained a detailed analysis of the bills aimed at amending the Act on the Public Service and the Labour Code. While the Government in its report insisted that it had reactivated the procedures concerning these drafts, in November 1997 at an extraordinary session, Congress had adopted an amendment to the Constitution proscribing strikes in essential public sectors, including schools. If one added to that: the fact that public employees were not permitted to form trade unions; and that those who could have, were affected by the Act of 1991 which introduced changes to the minimum number of workers required for the formation of a trade union, the removal of permanent status from workers who engaged in solidarity strikes and the implicit negation of the exercise of the right to strike of federations and confederations, it could be seen that there have been no improvements brought about by the changes to the legislation which limits the full exercise of freedom of association. He therefore supported the legitimate calls of the workers of Ecuador and their trade union representatives.

The Worker member of the United States pointed out that Ecuador had been cited in special paragraphs by this Committee for violations of Conventions Nos. 87, 98 and 105 in 1987, 1988 and 1989 and that the ILO had sent direct contacts missions to Ecuador in 1985 and 1989. As the most recent report of the Committee of Experts indicated, another ILO mission visited Ecuador on the issue of compliance with Convention No. 87 in September 1997. If one looked at the record as a whole, violations of Convention No. 87 appeared to be continuing and the situation could even be getting worse if one considered certain aspects of the Ecuadorean labour law system. The Committee of Experts stated in its report that two legislative Bills were drafted in Ecuador in September 1997. One of the Bills would have improved the organizational rights of civil servants and given them a right to strike by amending certain sections of the Civil Service and Administrative Career Act. The second Bill would have removed the requirement of Ecuadorean citizenship for trade union leadership eligibility and would have removed individual criminal liability in cases of allegedly unlawful strikes. However, neither of these Bills had been enacted and the Committee of Experts had already expressed its surprise at the failure of the Government to even mention these proposals in a report. Moreover, in his statement to the Committee, the Government representative had not mentioned the enactment of any new legislation.

In any event, even if these two Bills were to be enacted in the near future they would still not remedy some of the most fundamental violations of freedom of association principles. More specifically, the first Bill which would have amended the Civil Service and Administrative Career Act, still maintained a very broad and vague definition of essential services where the right to strike could be prohibited. Moreover, the second Bill's amendment of section 443(11) of the Labour Code which would allow trade union organizations and leaders to peacefully express their opinions on the Government's economic and social policies but not allow them to become involved in political campaigns, would deprive workers of one of the most fundamental forms of free expression and association. Finally, the two Bills, even if enacted, would be entirely overruled by other constitutional and statutory provisions which totally undermined rights of association. For example, in November 1997, the legislative branch of the Ecuadorean Government, in an extraordinary session of Congress, passed constitutional amendments banning strikes in key public services, including schools. Moreover, article 49 of the Ecuadorean Constitution specifically prohibited strike action in the sectors of electrical energy, water, health care, processing, the transport and distribution of combustibles, education, public transport and telecommunications. In addition, nothing in the proposed legislation would directly change the 1991 law which increased the minimum number of workers legally necessary to form unions and work councils from 15 to 30. This law was obviously passed to make unionization at medium and small enterprises even more difficult. The speaker concluded by urging the Government to take due account of what had been stated in the Committee and to ensure that necessary changes were made to the Constitution and legislation to remedy all of the violations of freedom of association which had been mentioned.

The Worker member of Spain thanked the Minister for his presence and for the explanations provided. He noted that the report of the Committee of Experts suggested that draft laws were being elaborated which contained certain improvements with a view to bringing the legislation of Ecuador into conformity with Convention No. 87, but the Government made no mention of these drafts in its report. He further noted that the Government referred to other draft laws, but that it finally decided to shelve them and to adopt a draft which made the situation even worse. He stated that such an attitude was an insult to the intelligence of the members of this Committee and constituted an enormous step backwards. In conclusion he considered that a special paragraph would be appropriate in this case.

The Worker member of Colombia stated that he was deeply concerned by the serious conditions the workers in Ecuador had to face as regards freedom of association. In spite of the efforts by the Minister, it was clear that the situation remained obscure and that legislation in this country was not in conformity with the relevant ILO Conventions. Even so, it would be useful if the ILO could provide the necessary technical assistance to Ecuador to seek to halt the conditions from deteriorating in the near future. It was not appropriate in this case to maintain that legislation in Ecuador was in conformity with the Convention while at the same time referring to Bills aimed at bringing it into conformity. Such statements inevitably evoked misgivings that the Government did not have any coherent policy in this matter. The speaker stated his support of the statement by the Worker representative calling for a re-examination of this case next year.

The Worker member of France noted that the declaration by the Government member of Ecuador was not at all convincing and he still believed that there was much to be done before Convention No. 87 was fully applied in Ecuador. He emphasized that the word for strike did exist in the Constitution of Ecuador and considered that the disdainful tone used by the Ministry of Labour constituted an attack on this Committee. He considered that the declaration by the Minister demonstrated that the violations of Convention No. 87 were real and that they seemed to be becoming more serious. The ongoing privatization in Ecuador provided a rationale. Finally, while he was inclined to ask for a special paragraph concerning this case, he agreed to accept the proposal by the Workers' members requesting a discussion of this case again next year, should no progress be made.

The Government representative of Ecuador thanked the speakers who participated in the discussion. He noted that some of them had referred to the constitutional provision concerning the prohibition of the right to strike. He observed that a reading of the Constitution should be undertaken with great care: it spoke not of strikes but of the paralysis of activities and there was no reference to the right to strike. Under the division of power in Ecuador the Government exercised executive power, and, in this role, it had asked Congress, in May 1998, to consider the draft laws mentioned in the discussion to bring legislation into conformity with the Conventions concerning freedom of association. This was the obligation of the executive branch which did not have the power to legislate. Referring to the draft laws elaborated during the technical assistance mission of 1997, he stated that they had not been adopted because of the legal situation existing in Ecuador. Finally, he stated that the Government of Ecuador was ready to comply with everything that the ILO had put forward for the benefit of the workers and that there were no problems in relations between workers and employers.

The Committee took note of the oral statement made by the Minister of Labour and of the discussion that took place thereafter. The Committee recalled with great concern that the Committee of Experts had been formulating comments on important discrepancies, between national legislation and the Convention, such as the denial of trade union rights for public servants and civilian members of the armed forces, the high number of persons required to form a union, the prohibition on unions from taking part in any form of political activity, the requirement of Ecuadorean nationality to be elected leader of a trade union, the severe restrictions on the right of workers' organizations to formulate their programmes of action for furthering and defending the interests of workers, under penalties of imprisonment, and the administrative dissolution of trade unions. The Committee recalled that this case had been discussed by the Conference Committee on a number of occasions and that a new ILO technical mission went to Ecuador in September 1997 to help prepare draft laws to improve the application of the Convention. It deeply regretted that no mention had been made whatsoever by the Government in its last report of the above-mentioned drafts and that no progress at all had been made. The Committee urged the Government to initiate measures in order to bring its legislation into conformity with the Convention at a very early date. It expressed the firm hope that the Government would supply a report to the coming session of the Committee of Experts which contained detailed and complete information regarding the measures taken to this effect.

Individual Case (CAS) - Discussion: 1993, Publication: 80th ILC session (1993)

The Government has supplied the following information:

As regards the comments of the Committee of Experts concerning the increase of the minimum number of workers required for the establishment of occupational organizations (section 439 of the Labour Code), the reforms have not impaired the guarantees provided for by the Convention since the right to associate is effectively in force in this country. The Government states that, according to the information furnished by the Department of Occupational Organizations of the Ministry of Labour, 87 occupational organizations in total have been registered in the country between 21 November 1991 and 15 May 1993; there are 45 trade unions, 15 works councils, 24 associations and three federations.

As regards the decisions of the Ministry of Labour when there is disagreement between the parties on the minimum services to be provided in the event of a strike (unnumbered provision, inserted after section 503 of the Labour Code), this provision is in force since the promulgation of Act No. 133 revising the Labour Code of 21 November 1991. However, until now there has been no case where the labour authorities have had recourse to the exceptional possibility of establishing essential minimum services when a strike has been called in institutions which furnish services of public interest.

Regarding the follow-up to the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, the Government states that a request has once again been addressed to the current President of the National Congress to proceed immediately to the necessary steps concerning the adoption of these draft amendments in order to bring into full conformity Ecuadorian legislation with the international Conventions ratified by the country, by emphasizing the obligation undertaken by the Government before this Committee in June of last year. Together with the request, a file containing precedents and full information on this matter was also transmitted. A file containing documentation on the proposed draft amendments was transmitted to the chairman of the Standing Legislative Committee on Labour and Social Matters. In his response, the president of the National Congress stated that he had requested the secretariat to take the necessary steps so that the plenary sessions of the committees could deal with the said draft amendments. Finally, on this occasion, the Government reiterates its decision to bring its national legislation fully into line with the international obligations to which it has subscribed.

In addition, a Government representative, the Minister of Labour and Human Resources, first indicated that his Government had come to power only in August 1992, but that since then it had been engaged in examining the questions which were the subject of the Committee of Experts' comments. In this regard, the affair had been brought before Parliament by the communication of 27 April 1993 so that the draft laws of 1990 relating to Conventions Nos. 87, 98, 105 and 111 could be examined by the latter. In addition, the Government had drawn the attention of Parliament to the urgency of approving the above-mentioned draft laws. Concerning these drafts, he stated that the Government had done all in its power to persuade the majority of the Members of Parliament to vote in favour of the adoption of the proposed reforms, but the final result was uncertain since the Government did not have the majority in the heterogeneous Congress composed of 17 political parties. As for the question of increasing the minimum number for the establishment of a trade union to 30, he stressed, on one hand, that the same legal requirement of a minimum number of workers to form unions existed in other member States of the Andean Pact (Peru, Bolivia and Venezuela - 20, and Colombia - 25) and, on the other hand, that this Convention did not specify a minimum number in this regard. In any case, unions continued to be formed normally since the legislative reform of 1991; a total of 87 unions had been legally established between November 1991 and 15 May 1993. The Committee of Experts considered, however, that the minimum number of 30 workers, which could be admissible in the case of sectoral trade unions, should be reduced for enterprise unions. The Government found this suggestion problematic and had not studied it because it would not be easy to determine what were sectoral trade unions and enterprise unions. Regarding minimum services in the event of a strike, the Government recalled that the legislative reform of 1991 had established a procedure on this matter and that the subject of the above comments was this procedure and not the minimum of 20 per cent of workers required for such services. He specified that the above procedure consisted of the obligation on the parties concerned to agree, during the 48 hours after notice of the strike to the employer, upon the modalities of minimum services in the services considered to be essential, and in the absence of agreement, of the fixation of such modalities by the President of the Conciliation and Arbitration Tribunal, a tripartite organ, since the President was the Director or Sub-director of Labour. The Government did not understand why the ILO's supervisory bodies could object to the establishment of this procedure while it recognized the right to ban or to limit strikes in essential public services. In practice, the power in question had not been exercised since the entry into force of the revision of the Labour Code, to establish the modalities of minimum services by the intermediary of the authorities. He reiterated the determination of his Government to find solutions for the problems raised by the Committee of Experts.

The Workers' members remarked on the length of time during which the case had been outstanding and the similarity of the Government's statement to that made in 1992 and expressed doubt about the Government's intention to make the necessary changes. As for the minimum number of workers for the establishment of trade unions, they stated it was not for the Government to try and avoid multiplicity of unions. Regarding minimum services in the event of a strike, the relevant legislation concerning the independent body that determined such services should be examined by the Committee of Experts. They were disappointed to see no positive action taken in view of all the discrepancies between the national legislation and the Convention. They requested that copies of the draft laws mentioned by the Government be sent to the Office.

The Employers' members remarked that the Convention did not set forth criteria on the minimum number of workers for the establishment of trade unions or of works councils, and that the principle should be the freedom of association. Concerning strikes, they considered that the Committee of Experts' comments on the relation between Article 8, paragraphs 1 and 2, of the Convention needed more nuance. They welcomed the Committee of Experts' recognition of possibilities of restricting or prohibiting strikes in essential services which, in their opinion, should be determined by social partners or an appropriate forum of the country. They agreed with the statement of the Workers' members' that various discrepancies existed and hoped for a detailed report from the Government for examination by the Committee of Experts.

The Workers' member of France wondered about the aim of setting a minimum number of workers for establishing trade unions. He considered that the requirement of minimum percentage of essential services hindered the right to strike, and expressed doubt about the Government's intention for changes.

The Workers' member of Greece recalled that the amendments to the Labour Code by Act No. 133 had been considered by the Workers' member of Ecuador at the 1992 Committee as a step backwards. He requested precisions on the reform concerning the five points raised by the Committee of Experts.

The Workers' member of Colombia pointed out the danger of leaving the definition of essential services unspecified in the legislation and thus to the discretion of the Government. He wanted further information on the precise contents of the draft legislation.

The Government representative provided some additional information on certain points raised by the Committee of Experts. He emphasized the right of the workers in the public sector to form and join trade unions of their own choosing, as well as to negotiate freely. His Government only made limitations on certain exaggerated aspirations which would have the consequence of reducing the financial resources of the State entities so that they would no longer be in a position to discharge their functions of public service. However, it had never been the case of interference in the right of workers to organize freely and to bargain collectively. Another aspect was the penalty of imprisonment for the instigators of collective work stoppages and illegal strikes, i.e. when public services were totally stopped. As to the requirement that members of the executive committees of works councils be Ecuadorian, he specified that this traditional requirement in Ecuador could be derogated when a situation of reciprocity existed with another country. Concerning the dissolution of works councils, section 461 of the Labour Code concerned only the cases of works councils whose membership dropped below 25 per cent of the total number of workers. In the other cases, only a judicial decision could dissolve a union. He stated that his Government had so far not dissolved any works council administratively and that the proposed reforms covered this subject. Trade unions that consisted of fewer than 30 members but more than 15 as required by the previous legislation could continue exercising their activities, since the new Act was not retroactive. Regarding the prohibition on unions from taking part in religious or political activities, this prohibition was meant to guarantee the freedom of political opinion and of religion, namely that the workers should not be obliged to share a political opinion or a belief in order to affiliate to a trade union or to exercise union activities. Otherwise, trade unions were not prohibited from expressing themselves on points of general politics. He reaffirmed his Government's commitment to resolving the outstanding problems and emphasized the Government's efforts to have the draft laws, which were elaborated with the assistance of an expert mission from the ILO, approved by Parliament. In this regard, the Government wished to count on the support of Ecuadorian workers. He stressed that all the relevant information and the draft texts proposed since 1990 had been communicated to the ILO.

The Workers' member of Ecuador stated that the draft laws to follow up the comments of the Committee of Experts were still with the Congress and that the trade unions supported any law that was favourable to the situation of workers. He further added that Law No. 133 had been challenged as unconstitutional in court. Finally, he requested that measures be taken to remove obstacles in the formation of trade unions. These obstacles were caused by some officials and their bias in conflict during social conflicts.

See also under Convention No. 105, as follows:

The Government has communicated the following information:

The Minister for Labour and Human Resources has proceeded to carry out the appropriate steps before the National Congress, which is responsible for discussing the draft reforms of the law which were prepared in 1989, to take note and approve of these reforms. The Government has sent a copy of the official letter No. 02-AIT-93 of 13 April 1993 that the Minister of Labour and Human Resources has addressed to the President of the National Congress and in which he requests that the constitutional procedures be engaged with respect to the following bills:

-- II-90-154 to interpret Legislative Decree No. 105 of 7 June 1967, published in the Official Register No. 161 of 3 July 1967, respecting collective work stoppages.

-- II-90-156, containing reforms of sections 443(11), section 455(4), section 456 and section 43(f) of the Labour Code;

-- II-90-157, to amend various provisions of the Commercial Code;

-- II-90-158, to repeal section 165 of the Maritime Police Code;

-- II-90-159, to amend section 11 of the Co-operatives Act;

-- II-90-160, to interpret the provisions of sections 53, 54, 55 and 56 of the Penal Code, and section 22 of the Code on the Execution of Penalties and Social Rehabilitation, with respect to forced labour.

The Committee noted the very detailed written and oral information provided by the Minister of Labour and Human Resources according to which the Government was committed to adopting the draft law revising the Labour Code prepared in cooperation with a technical mission of the ILO in 1989 and the assistance of the Regional Adviser on Standards, and to bringing its legislation into full conformity with its international obligations. The Committee recalled that the serious discrepancies between the national legislation and the Convention had been the subject of many discussions in the past and its conclusions had been contained in special paragraphs of its report. The Committee regretted that the Government had not yet adopted the appropriate measures to ensure the application of this fundamental Convention, ratified 25 years ago, and once again urged the Government to communicate a copy of the amendments to the Labour Code as soon as they were adopted. The Committee expressed the hope that it would be in a position to note, in the very near future, progress made with regard to the whole of the legislation.

See also under Convention No. 105, as follows:

The Government has communicated the following information:

The Minister for Labour and Human Resources has proceeded to carry out the appropriate steps before the National Congress, which is responsible for discussing the draft reforms of the law which were prepared in 1989, to take note and approve of these reforms. The Government has sent a copy of the official letter No. 02-AIT-93 of 13 April 1993 that the Minister of Labour and Human Resources has addressed to the President of the National Congress and in which he requests that the constitutional procedures be engaged with respect to the following bills:

-- II-90-154 to interpret Legislative Decree No. 105 of 7 June 1967, published in the Official Register No. 161 of 3 July 1967, respecting collective work stoppages.

-- II-90-156, containing reforms of sections 443(11), section 455(4), section 456 and section 43(f) of the Labour Code;

-- II-90-157, to amend various provisions of the Commercial Code;

-- II-90-158, to repeal section 165 of the Maritime Police Code;

-- II-90-159, to amend section 11 of the Co-operatives Act;

-- II-90-160, to interpret the provisions of sections 53, 54, 55 and 56 of the Penal Code, and section 22 of the Code on the Execution of Penalties and Social Rehabilitation, with respect to forced labour.

Individual Case (CAS) - Discussion: 1992, Publication: 79th ILC session (1992)

The Government has communicated the following information:

With regard to the observations of the Committee of Experts, the Government emphasises that the amendments in the Labour Code which were introduced by Act No. 133 were the result of important discussions and debates at the national level. The Act in question updates the Labour Code of 1938 and responds to the needs of contemporary economic and commercial reality without losing sight of the intangibility of the guarantees on labour matters contained in international Conventions.

Act No. 133 constitutes important progress in the protection of workers' interests. In order to approach professional relations more seriously and to guarantee a right of appeal to workers to claim their rights in the event of a loss of their source of income, the Act also introduces in the legislation two new bases for a strike (section 63(6) and (7)), and it increases the fines imposed in general on employers when they violate the provisions of the law which protects workers.

The opinions expressed during previous meetings with representatives of chambers of commerce and with workers' organisations were taken into consideration during the drawing up of reforms of the legislation.

Within the National Assembly, the Commission for Labour and Social Affairs is responsible for initiating the constitutional procedure provided for reform drafts which are proposed by the executive as well as for the propositions made to this organ by the United Workers' Front and the Ecuadorian Confederation of Class Organisations.

The goal of the reforms is to establish a balanced and equitable instrument to regulate professional relations to the extent that these reforms aim to correct defective procedures, make the exercise of the right of appeal quick and flexible, and improve the degree of individual protection of workers.

The increase in the minimum number of workers necessary to form trade unions (sections 53 and 55 of Act No. 133)

The Government is of the view that the exercise of the right to form trade unions is not hampered by sections 53 and 55 of Act No. 133 which increases the minimum number of workers to form trade unions. Indeed, the first paragraph of Article 8 of Convention No. 87 stipulates that in exercising the rights provided for in the Convention workers shall respect the law of the land. Consequently, this international instrument confers on each country the authority to determine, in the light of national realities, the necessary number of workers. It is precisely the economic, productive and social realities prevailing in Ecuador that have made it necessary to revise the minimum number of workers needed to form trade unions; the old rule was adopted in 1938, at a time when the industrial and professional development was still entirely in its initial stage. Today, the country is undergoing a process of economic, industrial and customs union at the regional and subregional levels. As of 30 April 1992, 41 workers' organisations had been established in virtue of Act No. 133. It is equally important to underline that the legislator has paid particular attention to the protection of acquired rights and to the legal personality of organisations established prior to the entry into force of the said Act. To this end, a transitional provision has been incorporated into the Act.

The decision of the Minister of Labour concerning minimum services in the event of a strike (section 69 of Act No. 133)

The legislator is of the view that the Government has the fundamental obligation to look after the functioning of minimum services in the event of a strike in institutions which provide services which are essential to the social or public interest. This is not a rule which applies generally, but rather is a provision of an exceptional nature, which is applicable to institutions which provide essential services in the social or public interest. Within this narrow scope of application, the provision in question applies only in case of a disagreement between the parties. It should be pointed out as an antecedent that since 1991 the country has suffered terribly from the effects of a serious cholera epidemic. Due to this fact, it was indispensable that hospital and health services, particularly those situated in rural zones lacking in sanitary facilities, continue to function. However, in these circumstances, national and regional strikes were called by workers in the health sector which completely paralysed the medical services. This situation not only led to the death of persons affected by cholera because they had not received the necessary medical care but also put parts of the population deprived of this essential public service in great danger. Any society, and especially one which is on the brink of poverty, has without any doubt a fundamental obligation to maintain the right of its citizens to life and to health. Confronted with this reality, the Government was obliged to adopt, without however hampering the right to strike or other actions with similar claims, adequate measures in order to ensure a minimum guarantee for the running of essential services. These measures apply once the period of time provided for in the law has run out and the parties are still not able to agree on the maintenance of these services.

Drafts of amendments to labour legislation

In the context of the commitment made by the Government towards the International Labour Organisation, the Minister of Labour took many steps within the National Assembly to include in the reforms drawn up by this organ in labour matters, the examination of draft modifications and of legislative interpretations of provisions which were the object of observations by the Committee of Experts. In the light of this commitment and considering that it is in the interest of the Government to regularise the application of ratified international Conventions, the Minister of Labour, in his communication No. DM-900116 of 18 April 1991, asked the President of the Assembly to initiate the constitutional procedure regarding the draft legislation which was submitted to this legislative body on 22 May 1990. Following this, in a communication No. AIT-91102 of 19 July 1991, the Ministry of Labour asked the Vice-President of the Commission for Labour and Social Affairs of the Assembly to proceed in the examination of reforms of the Labour Code. Finally, in a communication No. AIT-91117 of 12 August 1991, the Minister of Labour himself addressed the Vice-President of the said Commission and immediately asked it to advance in the examination and the adoption of the legislative reforms introduced on 22 May 1990. Under these conditions, the Government reiterates its intention to continue asking the competent authorities of the National Assembly to examine and approve the draft legislation, the end result of which will be determined by this legislative organ.

The Government has enclosed a copy of the communications mentioned in its report.

In addition, a Government representative, the Minister of Labour and Human Resources, supplied information on the efforts made by his Government to revise the country's labour legislation. Recalling that, in November 1989, at the request of President Dr. Rodrigo Borja, the ILO had undertaken a consultative mission to Ecuador to examine, among others, issues relating to the application of the Convention; draft legislation which took into account the suggestion made by the ILO mission had been presented to Congress. As of this time the draft legislation had not been adopted into law. Noting that communications had been sent to the President of Congress in April 1991 and the President of the Labour Law Committee in July 1991, he regretted that in spite of the close relations of these persons with trade union activists, no action had been taken on the draft legislation, leaving unresolved certain questions of application raised by the Committee of Experts. The speaker invited the Workers' members of his country to join with the Government in its efforts to adopt the draft legislation before the closing of the present legislative session in August 1992. As concerned the specific points raised by the Committee of Experts in its observation on the problems in applying Act No. 133 of 1991 to reform the Labour Code, in relation to the Convention, the speaker referred to the context of this reform. The reform had been made after a significant period of consultation with workers' and employers' organisations, consultations which had never taken place before in the history of constitutional democracy in Ecuador. Act No. 133 brought many improvements for workers; unfortunately, the Committee of Experts' observations took up only two points. Act No. 133 did not violate the explicit provisions of the Convention. The Convention did not stipulate a permissible minimum number of persons for establishing a workers' organisation, a level suggested to be between 20 and 30 workers. Changes in economic and social conditions of his country had obliged an amendment of the Labour Code of 1938, increasing the required minimum of 15 workers to 30. The speaker recalled the comments recently made by the President of the Republic of Zambia to the Conference that efforts should be made to ensure that legislation does not hamper business activity, as well as the offer of the Director-General of the ILO to provide technical assistance to countries seeking to make labour legislation more flexible in the light of new social and economic conditions. The Government had introduced elements of flexibility in its labour legislation and was going to examine the practical results of Act No. 133; in the six months it had been in force, 41 workers' organisations had been registered and the frequency of labour disputes had dropped. As concerns the decision of the Ministry of Labour, in the event of disagreement between the parties, on the level of minimum services to be maintained in the event of a strike in services that are considered to be essential - referred to by the Committee of Experts in its observation - the speaker expressed the view that strikes in essential services, particularly hospitals, had produced desperate situations for local populations. The regulation of strikes had to be considered in a broad social context, both by governments as well as by trade unions. In any case, under Act No. 133, the number of cases in which a strike could be called had been extended. In conclusion, he emphasised the need to revise the labour legislation in such a way as to meet the principal preoccupation of government: unemployment and underemployment. As unemployment had been a priority issue for government, measures had to be taken to encourage creation of enterprises.

The Workers' members were deeply disappointed that the Government did not take advantage of the opportunity offered by the adoption of Act No. 133 in order to put its legislation in conformity with the Convention as well as to implement the points contained in the comments of the Committee of Experts over the last several years. This was all the more so because of the fact that this case had been previously discussed on several occasions, that two ILO missions had visited Ecuador (1986-89) during which the Government had taken on certain undertakings, and that special paragraphs were included in the Committee's reports to the Conference in 1988 and 1989. Despite the fact that the Committee of Experts made, at least on one occasion, a positive comment about Act No. 133 (an increase in the number of justifications for going on strike) they considered this Act raised previously non-existing problems. In conclusion, they noted that unfortunately nothing had changed regarding the serious violations raised for a number of years by the Committee of Experts. Act No. 133 could very well be a ploy on the part of the Government to avoid making basic changes in the Labour Code by amending only certain articles and thus claiming to fulfil the requests of this Committee. The Government had stated, however, that the basic changes requested by the Committee of Experts had only been submitted to the National Congress by one of its members. It seemed to them, therefore, that the fate of the trade union movement had become the task of an individual member of Congress and regretted to note the decline in the State's responsibilities in this area. They considered, therefore, that the serious problems of the application of the Convention remain unchanged: the prohibition placed on public servants from setting up trade unions, the intolerable interference by the Government in the internal administration of trade unions as well as on matters touching on the very existence of the trade union movement, the Government's negative attitude about freedom of association and the dynamic role that trade unionism could play in the economy and in the development of the country, the increase of the minimum number of workers required for the establishment of trade union associations. In fact the Convention does not specify any such number and it was evident that the increase in the minimum number required tended to diminish, in reality, the possibilities of workers to create trade union organisations as well as their power to defend their interest. The Workers' members strongly urged the Government to be more active in ending, as soon as possible, the long-standing problems raised and thus fully implement in practice the provisions of the Convention.

The Employers' members referred to the three points raised by the Committee of Experts regarding Act No. 133. They did not wish to make further comment on the extension of the number of cases in which a strike can be called, as this aspect of the Act had not been criticised by the Committee of Experts. They recalled, however, that the Experts considered problems could arise regarding the other two aspects of the Act (the increase in the minimum number of workers required for the establishment of trade union associations and the decision by the Ministry of Labour, in the event of disagreement between the parties, on the minimum services to be maintained in the event of a strike). Apparently the Experts were not sure on this point and the Workers' members expressed the same doubts as well. Although a good number of countries did require a minimum number of workers for the establishment of trade unions, the Employers were of the view that it was not necessary to fix such a minimum number. As the Convention was silent on this question they felt that it should be the practice in reality that should resolve the question. The Experts considered the minimum number established in the Ecuadorian legislation (the figure was increased from 15 to 30) to be a dubious one. The Employers' members did not wish to pursue this point because, as already stated, they felt it was the practice in reality that should provide solutions. As regards the decisions made by the Ministry of Labour, in the event of disagreement between the parties on the minimum services to be maintained in the event of a strike, the Employers' members considered that it was necessary to maintain emergency services. A decision should rapidly be made in the event that the parties failed to agree on the definition of such services. In their opinion, this decision should be made by the employer and that such decision could successfully withstand legal challenges. They considered medical services to be part of essential services that should not be interrupted and for which the minimum requirements should be clearly established. The Experts required other changes regarding the five points discussed previously by the Conference Committee. The Employers' members considered these points to have varying degrees of importance. With regard to the penalties for strikes they assumed this referred to illegal strikes. In view of the fact that this Committee was not aware of the clear definition of an illegal strike in the country, they felt this question should be left pending for the time being. With regard to the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers, they considered that the Convention did not contain specific provisions on this point. In such a case they considered that the general principle that, on such matters, freedom, understood in the widest sense possible, should apply and that practice in reality should resolve the details of its application. The other points, namely, the prohibition placed on public servants from setting up trade unions, the requirement that members of the executive committees of a works council be Ecuadorian, as well as the prohibition placed on unions from taking part in religious or political activities, were, in their view, unjustified interferences in the exercise of freedom of association. With regard to the four drafts presented to the National Congress by one of its members referred to in the report of the Committee of Experts, the Employers' members requested the Government's representative to provide information on the content of these amendments as well as on the prospects for their adoption. Considering that it was up to the Government, in the end, to take appropriate measures regarding the criticisms made, they requested for all useful information in this respect.

A Workers' member of the United States, on behalf of the Workers' members, regretted the fact that this was a long-standing problem in need of remedial action. He was all the more concerned because of the absence of information from the Government representative on the results of the 1986 direct contacts mission. Six years after this mission, the situation remained unchanged. The exasperation of the Workers finally led the Workers to insist on, and obtain, a lengthy special paragraph in the report on the question. He requested the Government representative to indicate to this Committee which recommendations of the direct contacts mission received follow up in order to initiate the badly needed reforms and which ones did not, and the reasons for such failure.

The Workers' member of Ecuador deplored the fact that the changes to the Labour Code introduced by Act No. 133 of 1991 signified a step backwards of 50 years in the area of freedom of association, collective bargaining and the right to strike and that the Government had taken no measures to go ahead with the adoption in Parliament of the draft legislation prepared with the ILO's technical assistance and which concerned four of the points raised by the Committee of Experts for many years. Regarding the establishment of trade unions and, specifically, the increase of the minimum number of workers (from 15 to 30) included in Act No. 133, the Government had justified this provision in the press by stating that it was aimed at increasing employment, and that if trade unions were to be restricted to enterprises with more than 30 workers, more small enterprises would be created. This was a violation of the Convention, especially when account was taken of the fact that most undertakings in Ecuador did not have the above-mentioned minimum legal number of employees. In addition, attainment of this minimum number might be easily frustrated, lost by the dismissal of members, since all that was needed for dismissal was the simple payment of compensation. In addition, the creation of trade unions faced obstacles in the Ministry of Labour which, in many cases and repeatedly, returned the trade union constitutions without having registered them because of minor problems with formalities such as the omission of a word, full stop or comma, thus violating the legislation. In relation to the prohibition on public servants from setting up trade unions, the President of the Republic had stated in the press that unionism in the public sector was the shortest road to the dissolution of the State; this concept inspired the Government's policy on trade unionism. Public servants could also not bargain collectively or sign collective agreements. In addition, section 73 of the Armed Forces Act denied civilian employees in undertakings attached to the armed forces the right to form trade union organisations. He also criticised the regulation of minimum services to be provided in the event of a strike in essential services as set out in Act No. 133. The range of public and private activities which do not correspond to "essential services": minimum services must be maintained with at least 20 per cent of the workers and, when the parties did not agree on the number of workers required to guarantee that service, the Ministry of Labour decided the matter. This was the case in the public sector as well, where the State was both judge and petitioner. If the workers did not accept the minimum service decided by the Ministry, they could be dismissed and new workers could be recruited, including those subject to civil liability. He criticised the provisions of Act No. 133 concerning the need to establish a sole central committee representing 50 per cent of the workers in a company, undertaking or industry of the public sector so as to be able to bargain collectively. Such a committee in fact replaced unions and disappeared once a collective agreement was signed, thus making any follow-up on the agreement impossible. Moreover, the required percentage of 50 per cent for negotiation could be very difficult to attain. In concluding, he recalled that the case had been discussed for many years and supported the Committee of Experts' observations; he hoped that the Committee of Experts would examine the points to which he had referred.

The Employers' member of Ecuador stated that the intervention of the Workers' member of Ecuador was highly exaggerated and gave a picture which did not correspond at all to the situation existing in the country. He deplored the fact that the trade union organisations had not wanted to take part in the first stage of the work on revision of the Labour Code and had participated in an unsatisfactory manner in the subsequent phase. He regretted that the questions were being interpreted out of context and that there had been no mention of the labour victories gained through Act No. 133: increase in compensation for unjustified dismissal; possibility for unions to intervene as parties in judicial proceedings where the State had lodged a petition against an undertaking; possibility to exercise the right to strike during collective bargaining; creation of a tripartite minimum wages council; abolition of the low level of protection against dismissal for workers having permanent contracts. As for the right to unionise in the public sector, a restrictive standard did exist, but only in theory - and statements of the President of the Republic had explained this - because most public servants in Ecuador had enjoyed this right since the revision of section 125 of the Constitution in 1978. Trade unions existed in municipalities, in the petroleum sector, in the electricity sector, etc., and for this reason Act No. 133 regulated the minimum services to be maintained in the case of a strike. This was because, in such essential services, the community had a more valuable interest than that which trade union leaders wished to impose - although it was also valuable - and the country could not for that reason be at their mercy. The increase in the minimum number of workers for the establishment of a trade union contained an implicit reference to informality in a context where undertakings faced many restrictions. A choice had had to be made between rigid legislation and a flexible, sensible and prudent legality in which all factors were present. Finally, he indicated that the minimum services to be maintained in the case of a strike met the requirements of equality in labour relations and in the exercise of the rights of all parties. Trade union organisations had on many occasions signed clauses concerning minimum services.

A Workers' member of France noted that statements made by the Employers' member of Ecuador would make one believe that the situation was satisfactory and the serious criticisms made by the Experts in their report should be overlooked. The statement did not include new points that would eliminate the need to amend the provisions prohibiting civil servants to form unions and the impediments on freedom of association. In addition the efforts made by an Employers' member to convince this Committee that it would be possible to put Ecuador in the hands of workers, despite the numerous obstacles contained in the laws, was beyond him. Taking into account the need to insist upon the changes requested by the Committee of Experts he expressed his expectation that the Government would do everything possible to change the laws along the lines suggested by the Committee of Experts and that the Ecuadorian employers would in future respect not only the laws but the workers in the country.

The Workers' member of Ecuador stated that the trade union organisations had sent their suggestions in writing to the Government concerning the reform of the Labour Code and that the Government had not retained them. Given the differences of opinion between the members of this Committee, he asked that an ILO mission visit Ecuador so as to obtain information on the application of the Convention.

A Workers' member of Colombia deplored the fact that the Employers' member of Ecuador considered the informal economy as the panacea of Latin America and sought justification for the disappearance of the trade union movement. The problems proposed by the savage capitalist model had to be looked at jointly in Latin America. Since there had been no reply given to the points raised by the Workers' member of Ecuador, the Committee of Experts would have to examine them next year.

A Workers' member of Pakistan pointed out that the right to organise, recognised in the Convention, was equally pertinent to workers and employers. He appealed to the Employers to show concern in this case even if it only involved the right of workers to organise because the power of the Government to dissolve such organisations could be also applicable to them. In his view, trade unions always put their communities' interests ahead of their own. He expressed the hope that the national legislation in Ecuador would soon be put into full conformity with the requirements of the Convention.

The Workers' member of the United Kingdom, on behalf of the Workers' members, expressed his doubts about the reassurances given by the Government representative that his Government did not wish to restrict the right of workers to organise. Workers in public enterprises such as electrical and oil companies were granted certain rights while employees of the state administration were still deprived of their right to organise. He was particularly concerned about civil servants in Ecuador who were denied the right to organise under the law of that country. The Convention clearly recognised their rights in this respect: he referred to the countless examples of civil service unions throughout the world. If civil service unions had not existed a number of leading members on the Workers' bench on the Committee would not have appeared and taken part in the work of the Committee. They recognised the right to strike had in recent years been queried by some employers as not being integral to the Convention but this Committee and the Committee of Experts had reaffirmed this right. Unless the Government representative could offer clarifications on the concerns addressed by this Committee and unless the Government could assure the Committee that his country will soon be in full conformity with this Convention they would be urging that this Committee re-examine the case next year. In the event that no progress is reported next year, they would be requesting that the matter be dealt with in a special paragraph in the Committee's report.

The Government representative regretted the attitude of certain Workers' members and, in particular, of the Workers' member of Ecuador whose tergiversation prevented any advance and had repercussions on the internal politics of the country. An example of this tergiversation was that Act No. 133 implied a step backwards of 50 years because it allegedly removed all the labour victories contained in existing law. He recalled in this respect that the trade union organisations had at the outset rejected participation in the process for reform of the Code and that, despite this, he had met with the trade union leaders - including the Workers' member of Ecuador - and managed to arrive at an agreement which settled eight or ten basic questions. It also had to be pointed out that under the present system 400 new trade union organisations had been established. He stated that he was willing to defend, together with the parties who so wished, the revision drafts which had been prepared with ILO assistance. He read them out to the Committee. He also recalled that the Member of Parliament who introduced these drafts in Parliament had done so at the request of the Government. Finally, he pointed out that the trade union organisations were involved in the noble fight for better conditions, but should not lose sight of the circumstances necessary for efficiency in public and private enterprises.

The Employers' members considered that this dialogue was necessary in view of the fact that the last time the Government spoke to this Committee was three years ago. The discussions, in their view, went beyond the points contained in the report of the Committee of Experts and they thought it was not appropriate to go into the details. Both the report of the Committee of Experts and the statement of the Minister referred to the positive changes made but they thought other changes were still needed. The Employers' members hoped that the Government would be able, as soon as possible, to provide this Committee and the Committee of Experts with a detailed written report in this respect. They urged that the Committee's conclusions concentrate on the large areas of agreement between the Workers and Employers regarding these suggestions.

The Committee noted the information supplied by the Government but recalled that the subject-matter had been discussed a number of times before and that its conclusions have been mentioned in special paragraphs of its reports. It found small signs of progress in the Bill to amend the labour legislation pending before Parliament. It asked the Government to take appropriate measures to bring its labour legislation into full conformity with international standards and to ensure implementation in the very near future, taking into account the great importance attached by this Committee to freedom of association. It urged the Government to send the relevant documents to the ILO as soon as possible and it decided to examine the case at its next session and hoped to note with satisfaction measures taken in this respect.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative referred to the fact that in accordance with Ecuador's democratic traditions a new Government had been elected in early 1988, and had taken office in August 1988. The new Government had studied the observations which had been formulated by the supervisory bodies of the ILO in previous years. It wanted to satisfy all of the requests which were reasonably compatible with the national interest. Consequently, three legislative decrees had been sent to Congress, all of which were designed to deal with matters raised by the ILO. The President of the Republic had also approved an Executive Decree which was intended to achieve the same objective.

One of the draft decrees consisted of an interpretation of Decree No. 105 of 7 June 1967 concerning,collective work stoppages. This new decree makes it clear that the 1967 measure does not apply in any way to collective stoppages at work, and that it did not prohibit workers the exercise of their rights to strike or organise - both of which were guaranteed by the Constitution of Ecuador.

Turning to the other comments of the Committee of Experts, the speaker indicated that public servants did have the right to associate and freely to elect their representatives. Their associations were not called trade unions, but they did exist.

It was logical that the members of the executive committees of works councils should be of Ecuadorian nationality. It was also logical that works councils should be dissolved if their membership fell below 25 per cent of the total number of workers at the workplace,because in such circumstances it would no longer be representative of the workers. Studies were under way in order to finalise the Government's positions on these matters.

The proposals which were put forward by the direct contacts mission in 1985 should be examined cautiously. It was especially difficult to criticise the legislative provisions which prohibited the religious or political activities by trade unions. These provisions had profound systemic and organic meaning in Ecuador. They had emerged out of intense political and religious struggles which had bloodied the country for many years: The Government did not wish to see this situation recur in the future. The Constitution permitted full political and religious freedom. Trade unionists were free to worship in their churches, and to fight politically within their parties. However, it was necessary to keep both religion and politics out of trade union affairs. The Government hoped that the present Committee and the Committee of Experts would respect national sensibilities in relation to this matter.

Referring to the comments of the Committee of Experts on the need for legislation protecting workers against anti-union discrimination at the time of recruitment, his Government did not understand what this observation meant. He referred to various provisions of the Labour Code which were intended to protect workers in various contexts. He called upon the Committee of Experts to indicate precisely what changes they wanted to see implemented in this area.

Turning to the comments sent to the Committee of Experts by the Ecuatorian Confederation of Class Organisations (CEDOC), he stated that comments sent on 22 January 1988 had nothing to do with the present Government. It was inopportune, therefore, for the Committee of Experts to refer to these comments in their report. If CEDOC believed that their comments were still relevant this organisation should indicate which cases they wished to denounce.

In relation to the delegation to officials of a lower category of the power to refuse to register workers' organisations, he pointed out that there had to be some delegation of authority in a complex administration. The Constitution provided that the different ministries should deal with different topics. The Labour Code expressly empowered the Labour Directorate to deal with a range of issues including occupational health and safety, minimum wages, social services and labour organisation. It followed that there was nothing improper in the fact that officials in the Directorate dealt with matters pertaining to labour organisations.

The Worker member of the United Kingdom thanked the Government representative for his detailed statement on the state of the law and on the legislative changes envisaged. He declared, nevertheless, that it would have been more helpful if this information could have been provided to the Committee of Experts.

The Committee of Experts had said that since 1985 there had been no indication that the Government had taken any measures to implement the proposals made to the Government by the direct contacts mission. The Government representative said that he looked to the present Committee for advice. All the necessary advice was contained in the report of the mission, which had been agreed with the Ministry of Labour in the country. The present Committee wanted the Government to indicate that it intended to make these changes as soon as possible. The speaker observed that the Government representative said that public servants had the right to organise and to elect their representatives. However, this did not grant to civil servants a right to form or join the union of their choice in full freedom. He asked the Government representative to give an assurance, and to provide evidence to the Committee of Experts to the effect that public servants would be allowed to join unions of their own choosing, and that they would be treated in no way differently from other workers in this regard.

The Workers' members said that in 1985 a direct contacts mission had taken place because of problems which had been observed in previous years in relation to trade union freedoms as embodied in this Convention. They had hoped that after the direct contacts mission they would see appropriate changes to the legislation - for example, in relation to the right to organise public servants and the administrative dissolution of trade unions. The present Committee had waited for two years after the mission in order to see what would happen. By 1987 nothing had happened, and the report of the present Committee for that year contained a long special paragraph relating to Conventions Nos. 87 and 105. The Workers' members had hoped that they would see real change - especially after lengthy discussions in the Committee, involving the Vice-Minister of Labour. Yet today, the present Committee was faced with exactly the same situation. The Workers' members had heard a speech which contained vague promises, but still nothing had been done. They considered that this lack of progress over many years suggested to the Committee a case of continued default in application of the Convention. The Workers' members expressed their hope to hear more positive responses from the Government. They expressed the hope that the discussion would elicit more concrete proposals from the Government representative.

The Employers' members agreed that there had been no progress in this case, and perhaps there had even been movement in the opposite direction. They noted that the Committee of Experts had dealt with six problems areas. The Government representative had not addressed any of them, nor had he indicated that any changes were going to be made in relation to them. A direct contacts mission had taken place in 1985. It had suggested appropriate legislation solutions. It now appeared that these were not being considered in any realistic way. The present Committee now finds itself in the same position as in 1987 and 1988. The Government, in fact, showed no real will to correct any of the deficiencies that had been identified. It talked in terms of incursions upon national sovereignty; when it ratified an ILO Convention, it undertook an obligation to meet the requirements of that Convention. That had not been done in this case.

The Government member of Venezuela felt that it was important to take account of the democratic context of the country. It had a long democratic tradition, and there was undeniably an atmosphere of freedom. Some of the cases with which the present Committee had to deal were far more serious than this one. He understood the Committee's impatience because of the delay in implementing the recommendations of the direct contacts mission. However, it was necessary to bear in mind that there was a new Government in Ecuador, and that it was important to try to maintain dialogue with that Government.

The Workers' members put five specific questions to the Government representative: (1) Did the draft legislation exist in written form? (2) Where had the draft texts been presented within the country? (3) Had the texts been sent to the ILO for scrutiny by the Committee of Experts? Was the Government going to do so? (4) Did the draft laws respond to the proposals formulated by the direct contacts mission to bring the law into full conformity with the Convention? (5) Did the draft laws respond to the specific comments which had been made over a number of years and which were repeated in the report of the Committee of Experts this year?

These were precise questions and if the Government was able to provide precise answers then it would be possible to continue a dialogue.

The Government representative indicated that the draft decrees had been submitted by the President of the Republic to the relevant legislative body - that is the Congress - for proclamation as a law. The Executive Decree had been sent, with presidential endorsement, to the relevant minister in charge of implementation. He had the relevant texts with him, and would immediately hand them to the Secretariat.

The Workers' members noted that this constituted a partial reply to their question. The Government representative had not indicated whether the text corresponded with those agreed with the direct contacts mission. Since there was a formal promise to submit the documents to the Secretariat for examination by the Committee of Experts, they were prepared to be patient for one more year. They believed that the Committee's observations should be contained in a special paragraph, but there should not be any reference to continued default in application of the Convention.

The Workers' members proposed that the conclusions should be included in a special paragraph.

The Employers' members expressed some hesitation at the use of a special paragraph because there had been one small step taken in good faith to resolve the situation.

The Workers' members pointed out that special paragraphs were not used to condemn governments, but rather to show that the Committee had discussed an important issue. Furthermore, there had been a special paragraph in 1987. It would have been possible to have gone further on this occasion. but the Workers' members noted that there was some hope that the draft legislation would contain satisfactory responses. This should be reflected in the conclusions.

The Employers' members agreed to the Workers' proposal subject to this reformulation.

The Government member of Venezuela was concerned that a number of more serious cases of violations were not being recorded in a special paragraph; in the present report of the Committee, one might be led to conclude that the Committee applied dual standards in dealing with cases before it.

The Committee took note of the information provided by the Government representative. The Committee recalled that the direct contacts mission of 1985 had, in agreement with the Government, prepared draft amendments designed to remove a serious disparity between the legislation and the provisions of the Convention and in order to give effect to the comments of the Committee of Experts.

The Committee noted with satisfaction that the draft legislation would be transmitted for examination by the Committee of Experts and expressed the hope that these drafts contained solutions to the existing points of difficulty or divergence from the Convention.

The Committee took note of the assurances provided by the Government that these draft amendments would be implemented as soon as possible in order to bring the legislation into conformity with the Convention. The Committee expressed the hope that the Government would be in a position to show proof of progress in the application of the Convention by next year.

The Committee decided that its conclusions should appear in a special paragraph.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

A Government representative wished to recall that a new administration was to assume power on 10 August 1988; it would be up to this new Government to take decisions in relation to the matters being addressed by the present Committee. He asserted that there was full freedom of association in Ecuador, as guaranteed by its Constitution and labour laws, in accordance with the provisions of the Convention. For many years now, the ILO had been informed of this; he stressed that the Labour Code predated the adoption of the present Convention by ten years, and that it incorporated the ideals promoted by the Convention. He stated that in Ecuador the provisions of Convention No. 87 were applied on an active and intensive basis in everyday life; the Convention was not a mere legal fiction, but rather a tool in daily use. He said that the Government had encouraged dialogue between labour and management, promoted the conclusion of collective agreements as the proper instrument for governing labour relations and speeded up wage-fixing procedures, all of which showed trust in the effectiveness and usefulness of trade unionism. In the past eight months, 157 labour organisations had been registered, which showed that the current Government's term (1984 to 1988) had been a period of labour harmony. This was true in spite of the picture painted by some in paying attention to so-called general "stoppages" which involved no labour demands whatsoever and which the Government had felt obliged to carefully control in order to avoid vandalism and to ensure the protection of the country's citizens. The Government representative indicated that the situation could be improved and that the Government was open to taking account of the observations made by the Committee of Experts in relation to the present Convention, without implying any compromise of the country's independence or national sovereignty or of the uppermost interests of the people, such as public peace, internal order and security from outside threats. Reasonable observations would be given full attention. The Government representative enumerated the observations made by the Committee of Experts and called attention to the fact that although the Committee had referred to the Government's reply to the first four points of the observation, it had not indicated whether the reply was sufficient or not, since the Executive Branch had not been able to exercise its right to put legislative proposals before Congress meaning that these four points had not been definitively resolved. Now the current Government found itself in the situation that these matters were in the hands of the recently elected Government which would be exercising power within a few weeks. Finally, in regard to the observation on the need to have provisions guaranteeing protection against acts of anti-union discrimination at the time of recruitment, his Government believed the Committee of Experts had to clarify its position so as to state what they were really asking. In the Government's view, the legislation in force was effective and more than sufficient, since if a contract of employment contained any clause contrary to freedom of association, it would be null and void; moreover, if anti-union acts took an extreme turn, the matter would be dealt with in the penal sphere because a violation of constitutional rights would be involved. The Government representative concluded by saying that Ecuador was fully complying with all provisions of the Convention and that the Government had taken into account the Committee of Experts' observations with the intention of translating them into practice within the possibilities and means of the internal legal order.

The Workers' members saw many contradictions in the Government representative's statements: the Government recognised that changes were needed, yet everything was in order; the Committee of Experts had not clearly explained what the Government needed to do, yet the representative had quoted from the list of shortcomings set forth in the observation. In short, nothing had been done. Direct contacts had taken place in 1980 and 1985, leading to recommendations, but unfortunately no progress had been made. While it was true that free trade unions existed in Ecuador, those very unions had pointed out the need for legislative changes. The Government was interfering in trade union affairs and this was impermissible under the Convention. Public officials were denied the right to establish trade unions, a nationality requirement was applied to trade union leadership, works councils could be automatically dissolved if membership fell below a certain level, and collective work stoppages could be punished by imprisonment. The Government's argument that all of this was necessary in the interests of order, security and protection of the population was simply unacceptable. In the years since the last direct contacts, the Government had done nothing to ensure conformity with the Convention. Now that a new administration was coming in, the Committee ran the risk of facing the same lack of progress next year.

The Worker member of Ecuador declared his solid support for the statement made by the Workers' members. He also thought that the Government's statement was full of contradictions, which did not help in finding a solution to the problems of divergencies in relation to the Convention. The Government's statement was general and contradictory and did not mention any progress made in relation to the matters raised in the Committee of Experts' observation. It was no excuse to say that legislative improvements could not be made since the Government's term was ending and that it was up to the new Government to act. The conditions faced by workers had not only failed to improve, they had worsened. There was freedom of association but there were explicit prohibitions on the right to establish trade unions, on collective bargaining and on strikes in the public service. The situation had become more acute as well because of the current economic crisis, as reflected in the figure of more than 2 million persons unemployed or underemployed, which had led to the creation in certain enterprises of parallel enterprises which took advantage of the high unemployment rate by contracting workers at wages lower than those stipulated in collective agreements. The workers of Ecuador had lost faith in the Government. The speaker indicated that in 1987 the Government had proposed amendments to the Labour Code which would have limited the right to engage in sympathy strikes and which, in relation to part-time work, would have violated express provisions on equality of treatment of various forms of work. Congress had fortunately rejected these amendments. The Worker member also referred to the legal minimum wage which in 1984 amounted to US$ 96 and today was only the equivalent of US$ 30 for a typical family of five. He said that the Government's statement alleging that absolute and total freedom of association existed in the country was not true. As an example he cited the demands of workers presented by the three central trade union organisations which made up the Unified Workers' Front (Frente Unitario de Trabajadores), categorised by the Government as an illegal political activity, which had sought wage increases, the resolution of labour disputes, a price freeze on food products, loans and technical assistance for small-scale farmers, improvements in the social security system, no increase in transport fares and non-payment of the foreign debt. To support these demands, a nation-wide strike had been called on 1 June 1988 which had let to the arrest of six workers, including José Chavez, President of the CEOSL, of which the speaker is a member. In conclusion, he stated that Ecuador's social problems needed to be resolved as a priority in the face of the foreign debt. Although, given the severe economic crisis, the workers did not hold out much hope with the new Government which was to take Office on 10 August 1988, they were hopeful that it would respect human rights.

The Employers' members considered that it was clear that there had been no progress in this case. The Government had indicated in its report that it was prepared to make changes in three of the six problem areas (public servants' right to organise, foreigners' eligibility to become members of executive committees of trade unions and non-dissolution of works councils), but the Government representative had not mentioned that any Bill or decree had been submitted to a competent authority to correct these difficulties. The direct contacts mission in 1985 had prepared draft legislation in all of these areas. The case was in the same posture as last year, with no indication of any real will on the part of the Government to correct the deficiencies.

The Government representative had been unable to recognise his own country in much of what had just been said. He admitted that while his country was poor and wages were low, the average wage was in fact three times more than the legal minimum wage. Congress was now discussing an increase in the minimum wage, so the work stoppage mentioned by the Worker member of Ecuador had been called just in case that increase was not adopted. The stoppage had been occasioned by an increase in transport fares, which were very low. The speaker referred to overall economic conditions in the country, which he said were not the worst in the region. He denied that the Government had committed economic crimes against the workers, whose situation was, if not good, at least stable. The workers had freedom of association and freedom of expression; as an example he referred to a newspaper account of a trade union leader referring to the "stupidity of the Minister of Labour" in connection with demands made by transport workers. The Convention was adhered to by the latter in his country although the changes recommended by the direct contacts missions had not been made. Noting that the Ecuador Central of Working Class Organisations had made comments (referred to in footnote 1 to paragraph 79 of the Committee of Experts' general report) in relation to this Convention, he stated that the Government had a clear idea of what needed to be done. The Government was open to amending its legislation but it could not do so every day. Due to opposition, it had not been possible to make the changes. He admitted that there were certain contradictions in the situation.

The Workers' members stated that in view of the importance of the Convention and the long period during which this problem had been under discussion, the deplorable situation justified mentioning this case in a special paragraph of the present Committee's report. The Employers' members agreed with this proposal, given the importance of the issues involved and the evident lack of progress.

The Committee took note of the explanations provided by the Government representative and of the indications supplied in relation to questions posed by the Committee of experts. The Committee noted that the Government had accepted several of the recommendations which had been made in the course of the direct contacts mission. The Committee hoped that the other discrepancies would be eliminated on an urgent basis so as to bring the legislation and practice into full conformity with the Convention. It requested the Government to provide full information in reply to all the points raised by the Committee of Experts and in particular, regarding any measures taken or envisaged in connection with the application of the Convention. It decided to mention this case in the appropriate part of its report.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

A new Minister has been in charge of the country's labour policy since 12 May 1987. He will try, when the opportunity presents itself, to push for the legal amendments which have been proposed. For this reason, he requests a judicious measure of patience.

The Government reports that the Court of Constitutional Guarantees, on the occasion of a proceeding brought by workers' representatives challenging the continuing validity of Legislative Decree No. 105 of 7 June 1967, confirmed that it was still in effect, since it did not violate any constitutional principles. When the Court's decision was presented to the Plenary of the Permanent Legislative Committees of the National Congress, the Parliament confirmed the judgment.

This situation reaffirms and confirms the position which the Government has been maintaining with regard to the above mentioned Legislative Decree, to the effect that it in no way infriges upon the right to organise, or freedom of association, or the spirit or the letter of Convention No. 87.

Primacy of the Constitution over other laws. This concept, embodying the legal hierarchy, is set forth in the Constitution. The guiding principles for labour rights are incorporated in this Constitution. The right to organise trade unions is guaranteed by the Constitution; it is a constitutional precept. Workers' right to strike and employers' right to lock out are guaranteed by the Constitution: they are constitutional precepts.

The right to strike, guaranteed. by the Constitution and effectively protected by the laws, constitutes the suspension of work, called by workers under certain circumstances specifically set forth in positive norms, within the framework of a collective dispute between the employer and his or her workers, as made known to the competent authorities on the subject. This enables the strikers to remain at the workplace and to be watched over by the police, who guarantee order and protect the strikers from the involvement of agitators or strikebreakers. The penalty for leaders of a strike which has been declared illegal is none other than the loss of their stability of employment. The "lock-out" or "work stoppage" (paro) is, in the labour field, the suspension of work provided by the employer, under certain precise circumstances and also within the framework of a process subject to the jurisdiction of the labour authorities. The "stoppage" (paro) referred to in Legislative Decree No. 105 of the National Assembly is something else, since this Legislative Decree is not labour-related in nature.

Legislative Decree No. 105 refers to activities which criminally paralyse the entire nation or locality for disruptive purposes. It refers to misdeeds which fall within the scope of crimes against the internal security of the State or public safety. It is related to the chapters of the Penal Code which are pertinent for the characterisation of such infractions and in particular sections 129, 130, 135, 136, 153, 155, 158, 159, 218 and 221 of that Code.

The Government requests that it be acknowledged in respect to the continuing allegations made concerning Legislative Decree N o. 105, approved by the National Constituent Assembly, that the Legislative Decree in no way runs counter to legal strikes. which are broadly protected by the Constitution and the laws, and that it does not in any way diminish the application of the Convention.

The legal value protected by Legislative Decree No. 105 is public order and the internal security of the State. The direct victim of the crimes could be any inhabitant of the Republic, whether a national or a foreigner; the indirect victim is civil society in general and could even be the State itself in terms of its political organisation.

When the Legislative Decree uses the word "stoppage" (paro), it does not use it in the same sense as the Labour Code: it does not deal with" a suspension of work ordered by an employer or combination of employers".

In this case the word "stoppage" ("paro") is used to mean "paralisation", arbitrarily imposed, by means of a rebellious attitude toward the legitimate authorities, in which daily life in an area is completely suspended in a region or in the nation as a whole, taking advantage of a situation of total or partial anarchy in the community affected and disturbing the peace of the inhabitants.

The penalties provided for in our Penal Code, in order to protect the internal security of the State and public order, are not unknown in the legislation of other countries. All civilised nations on the globe in one way or another envisage measures designed to defend the survival of the state entity and to protect society from anarchy. As Beccaria said, "The primal and the ultimate crimes, since they are the most dangerous, are those termed lèse majesté...; any crime, even a private crime, is an offence to society, but not every crime aims at its immediate destruction."

In addition, a representative of the Government of Ecuador cited in full the comments of the Committee of Experts in its 1987 report with regard to the Convention. Subsequently, he referred to the information provided by his Government in writing and also read out certain provisions of the Constitution and the Labour Code relating to the right to organise and the right to strike.

The Workers' members insisted upon the fact that national legislation was not in conformity with Conventions Nos. 87 and 98. Two direct contacts missions had taken place in 1980 and 1985. Amendments to the legislation were prepared at the time of the direct contacts mission in 1985. They stated that it was essential to adopt these amendments. They did not think that a new mission of direct contacts was necessary since this would only delay matters. They requested the Government representative to furnish information on the implementation of the legislative reforms which were envisaged.

The Employers' member reminded the Committee that the report of the Committee of Experts had clearly drawn attention to a number of violations, which varied in their importance, with respect to Conventions Nos. 87 and 98. At the time of the direct contacts mission in 1985, draft proposals had been worked out so as to ensure the conformity of national legislation with the Conventions. They thought it would be helpful if the Government representative could indicate whether the legislative reforms which had been envisaged had been adopted and, if not, to indicate whether they would be adopted in the near future. They were not convinced that a new direct contacts mission, as requested by the Government, would serve a useful purpose since the amendments necessary to ensure the compliance of national legislation with the Conventions had already been developed at the time of the 1985 direct contacts mission.

The Worker member of Ecuador expressed his complete disagreement with the information communicated in writing by the Government, as well as with the statement made by the Government representative. He stated that government policy with regard to labour matters rested with the President of the Republic through the labour co-ordination office, and not with the Minister of Labour. The nomination of a new minister would not therefore have an important impact on the situation and would not lead to the adoption of legislation giving effect to Conventions Nos. 87 and 98, whose provisions were not respected. He added that, certainly, the Constitution and the Labour Code honoured the basic principles of labour law. In practice, however, these principles were not respected. This meant that public employees did not have the right to form trade unions, although the Constitution guaranteed the right. Nor did they enjoy the right to strike, although this was permitted under the Constitution. The Act concerning the civil service and carreers in the administration was contrary to the Constitution. It was essential for the Government to take the necessary measures to reform this Act, since it was the basis of the problem. Furthermore, in practice, when workers presented their demands or gave notice of a strike, employers responded by dismissing workers, often en masse. In other cases, they dismissed trade union leaders. Although arbitration and conciliation tribunals had the right to insist on the reinstatement of workers who had been dismissed for having gone on strike, no one had been reinstated. The prohibition imposed on trade unions to participate in the activities of political or religious parties was also a violation of Conventions Nos. 87 and 98. The granting of exclusive rights to bargain collectively to "work councils" was another violation of these Conventions. What was even more serious was the classification of public servants into two categories, those who were covered by the Labour Code and those who were covered by the Act concerning careers in the administration.

As far as Legislative Decree No. 105 of 7 June 1967 was concerned, the Government had declared that its objective was to penalise criminal acts aimed at paralysing the activities of national or local communities. He stated that this was false; work stoppages punished by Legislative Decree Nos. 105 were specifically industrial strikes since these were organised and carried out by the four central trade union organisations. It was not, therefore, a question of crimes against the internal security of the State. Nevertheless, Legislative Decree No. 105 had to considered as abolished by the 1979 Constitution and should not, therefore, be applied.

Another Government representative, the Deputy Minister of Labour of Ecuador, indicated that the labour co-ordination office under the responsibility of the President of the Republic was not in charge of the country's labour policy, but was responsible for co-ordinating everything that related to collective bargaining in the public sector. The Constitution guaranteed the right to organise. Civil servants had enjoyed the right to strike since 1979 following the adoption of amendments to the Labour Code, as the last direct contacts mission had been able to observe. As far as the legal provisions on the prerequisites for workers in the public sector to organise were concerned, the Court of Constitutional Guarantees had suspended them for some time. With regard to Legislative Decree No. 105 of 1967, he stated that it was still in effect and its validity had been confirmed in January 1987 by this Court. He said that the Government of Ecuador had noted with interest the comments of the Committee of Experts. This was why the Government was interested in a new direct contact mission to visit the country so that it could familarise itself with the situation. It would be able to see the existence of trade unions and get in touch with the members of the Court of Constitutional Guarantees as well as with the representatives of Parliament. For this reason, he thought that it was not the time to adopt conclusions critical of Ecuador. He added that there was at the moment an ILO official in Ecuador studying the difficulties with respect to applying vari- ous standards concerning civil servants, which proved the Government's willingness to guarantee the full exercise of rights, not only for workers in the public sector but for all workers. Legislative Decree No. 105 of 1967 did not penalise either the workers or their leaders since in Ecuador the right to strike was guaranteed, but rather the Decree was intended to punish criminal acts, no matter who was responsible for them, which were meant to endanger the internal peace and security of the State.

The Worker member from the United Kingdom recalled that the Committee of Experts had expressed its regrets that the Government had not furnished information on the measures which it intended to undertake so as to give follow-up to the direct contacts missions. The information provided by the Government in writing did not provide any new information on this point. With regard to the Government's request for a new direct contacts mission, he could not see the value of this, since the Committee of Experts had already established the fact that the legislation must be amended. He added that the Government representative of Ecuador should be requested to state specifically if the legislation was going to be amended in such a way as to ensure the application of the relevant Conventions.

The Deputy Minister of Labour declared that it was because his Government considered that certain points had not been settled during the last direct contacts mission, despite the excellent work achieved in the course of this visit, that it had requested a new mission to come to Ecuador to complete the task which had already been undertaken. Furthermore, following the last visit, certain decisions had been taken by certain bodies independent of the executive branch of government, such as for instance the above-mentioned decision taken by the Court of Constitutional Guarantees.

The Workers' members emphasised the fact that the 1985 direct contacts mission had worked out precisely the changes which needed to be made so as to bring national legislation into conformity with Conventions Nos. 87 and 98. A new mission would not contribute anything new, and would merely delay by one or two years the adoption of the reforms which were necessary. Under these conditions and given the fact that the problem was an old one which had been dealt with for some time, they proposed the adoption of a special paragraph to express the concerns of the Committee and to request the Government to give follow-up to the draft reform proposals prepared during the course of the last direct contacts mission and to adopt the legislation to the requirements of the Conventions.

The Employers' members recalled the fact that no new information had been provided concerning changes in the legislation within the context of the draft proposals prepared during the last direct contacts mission, and expressed the view that they did not find the request for a new direct contacts mission to be very convincing. Given the importance of the question which had been considered in the Committee for a number of years, they expressed their support for the proposal of the Workers' members to include a special paragraph in the report of the Committee concerning this problem in the hope that the Government would put into effect measures which had been proposed for a long time.

The Committee took note of the detailed discussions which had taken place on the application by Ecuador of Conventions Nos. 87 and 98, and in particular and especially the information furnished by the representatives of the Government. The Committee regretted that no measures had yet been taken to give effect to the Conventions with regard to several points raised by the Committee of Experts. The Conference Committee drew attention once more to the comments of the Committee Experts and to the detailed proposal which had been worked out during the direct contacts mission in December 1985. It requested the Government to consider taking the necessary measures to revise the legislation. The Committee hope that the Government would take action rapidly on the basis of the observations and proposals mentioned above and that it would be able to indicate next year that substantial progress had been achieved towards ensuring compliance of the legislation with the Conventions. Finally, the Committee decided to mention this case in a special paragraph.

The Deputy Minister of Labour said he reserved the right to express certain reservations once he had studied the text and the terms of the conclusions.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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Article 3. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (Basic Reform Act) of 2017 prohibited strikes in the following public services: health; environmental sanitation; education; the justice system; the fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; and the postal service and telecommunications. The Committee asked the Government to take the necessary steps to ensure that the legislation did not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes. The Committee notes the Government’s indication that article 326(15) of the National Constitution prohibits the paralysation of the above-mentioned public services and provides that the law shall establish limits that ensure the functioning of the said services. The Government also indicates that Ministerial Order MDT-2018-0010 of 2018, regulating, among other rights, the exercise by public servants of the right to organize, including the right to strike, provides that the presence at work of at least 20 per cent of the total workforce of the institution must be guaranteed in order to cater for the essential needs of users and protect the facilities, assets and property of the institution. The Committee once again recalls that the ILO supervisory bodies have considered that it should be possible for strikes to be organized in numerous services including transport services, the public education service, fuel distribution services and the hydrocarbon sector (see the 2012 General Survey on the fundamental Conventions, paragraph 134). Furthermore, considering that the Basic Reform Act establishes that, in the absence of an agreement, the arrangements for the provision of minimum services will be established by the Ministry of Labour, the Committee once again recalls that any disagreement on minimum services should not be resolved by the government authorities but by a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised, and is empowered to issue enforceable decisions (see the 2012 General Survey on the fundamental Conventions, paragraph 138). The Committee once again requests the Government 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 and that the determination of minimum services is in accordance with the above principles.

Determination of minimum services in the private sector. 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 the new Government authorities will continue to analyse the reforms needed in the labour sphere, including the revision of section 515 of the Labour Code. The Government also indicates that the Ministry of Labour makes institutional services available to the workers and employers in order to ensure that strikes occur in the context of respect for labour rights, including those relating to minimum services. While taking note of the Government’s indications, the Committee notes with regret that no progress has been made in taking its comments into account. 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 National Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals, and 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 reiteration that the Labour Code regards mediation as a dispute settlement mechanism and that when the Ministry is informed of disputes, it offers objective support in order to end the strike subject to agreement on the parties’ interests. The Government also indicates that, in the wake of the change of Government, once the new legislative authorities are in place, the analysis of disputes of this type will continue in order to guarantee protection for all stakeholders in labour relations. While noting these indications, the Committee recalls 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 once again recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable: (i) when the two parties to the dispute agree to such arbitration; or (ii) when the right to strike may be restricted, or even prohibited, that is: (a) in the case of public servants exercising authority in the name of the State; (b) in disputes 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 once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations referred to above.

Articles 3 and 6. Right to strike of federations and confederations. The Committee has been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes the Government’s indication that while the legal system guarantees workers’ right to be represented through their associations, federations and confederations, the Government cannot interfere in internal decisions taken by labour organizations since the regulatory framework guarantees freedom of election, decision-making and organization. The Committee also notes that FETRAPEC, PSI in Ecuador and the FUT emphasize once again that federations and confederations cannot legally call strikes because they can only be declared by enterprise-level unions. The Committee once again recalls that it has considered that strikes are often called by federations and confederations which should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 122). The Committee therefore once again requests the Government to take the necessary legislative measures to ensure that trade union rights, including the right to strike, can be fully exercised by federations and confederations.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the Government’s partial reply to the 2022 observations of the International Trade Union Confederation (ITUC). The Committee requests the Government to provide its comments with respect to the alleged detention of demonstrators who took part in a national strike in 2021. The Committee notes that the Government replies in its report to the joint observations of the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, sent in 2022. The Committee also notes the joint observations of FETRAPEC, PSI in Ecuador and the United Workers’ Front (FUT), received on 31 August 2023, which cover in detail questions examined by the Committee in the present comment, indicate that the delay in the process of registering new union executive committees has become an ongoing problem that obstructs the proper functioning of trade unions, and highlight the refusal to register trade unions for reasons not covered by the Constitution or the legislation. The Committee notes that, according to FETRAPEC, PSI in Ecuador and the FUT, the Basic Employment Bill, which they had indicated did not take into account the Committee’s comments, was discarded. The unions also indicate that on 3 May 2023 Executive Decree No. 730 was issued, ordering the armed forces to take action to suppress organized crime, and they point out that this could be applied with regard to any attempt at social mobilization or protests. The Committee requests the Government to provide its comments with respect to the above-mentioned matters.

Technical assistance. Direct contacts mission. The Committee recalls that the Conference Committee on the Application of Standards (the Conference Committee), when examining the application of the Convention by Ecuador in June 2022, invited the Government to avail itself of technical assistance from the Office and requested the Government to accept a direct contacts mission. The Committee notes the Government’s indication that, in view of the current political situation in the country and the change of Government, the Ministry of Labour will resume talks and liaise with the Office in 2024 with a view to a possible direct contacts mission. The Committee expresses the firm hope that the direct contacts mission requested by the Conference Committee will take place as soon as possible and also hopes that the Government will avail itself of technical assistance from the Office, trusting that such assistance will contribute to progress in the adoption of specific, effective and time-bound measures, in consultation with the social partners, in order to bring the legislation into conformity with the Convention with regard to the points set out below.

Trade union rights and civil liberties. Murder of a trade unionist. In its last comment, the Committee deplored the murder on 24 January 2022 of Mr Sandro Arteaga Quiroz, secretary of the Union of Workers of the Manabí Provincial Government, and strongly urged the Government to take without delay all necessary measures to determine responsibility and punish those guilty of this crime. The Committee notes the Government’s indication that it consulted the Public Prosecutor’s Office, which sent it information on the offences in which Mr Arteaga Quiroz featured as a complainant. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that the file has been under investigation at the Public Prosecutor’s Office since 25 February 2022 but that the corresponding judicial proceedings have still not been initiated, which, according to the unions, demonstrates lack of due diligence on the part of the State. The Committee notes with regret that there has been no progress in the investigation and once again underlines the need for independent judicial investigations without delay in order to fully elucidate the facts and determine responsibility, punish the perpetrators and instigators and prevent any recurrence of such acts. The Committee once again strongly urges the Government to take the necessary steps without delay to determine responsibility and punish those guilty of this crime and keep it informed in this respect.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations and enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years, the Committee has been drawing the Government’s attention to the need to amend sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes that the Government does not refer in its report to the revision of the sections of the law relating to the number of workers required for the establishment of workers’ associations and enterprise committees, although the Committee has previously noted the position of several trade unions that the number of no less than 30 is disproportionate and unreasonable in view of the Ecuadorian business structure. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that, according to data provided by the Ministry of Labour, in 2022 the biggest enterprises in the country represented barely 0.5 per cent and it would be impossible to form trade unions in over 90 per cent of production units in the country. FETRAPEC, PSI in Ecuador and the FUT also emphasize that it is imperative that the possibility of organization is guaranteed for autonomous workers and informal workers. As regards the establishment of organizations comprising workers from a number of enterprises, the Committee noted with interest in its last comment that, in compliance with a ruling handed down in 2021, the Ministry of Labour was ordered to register the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) as a branch union, despite being formed of workers from various enterprises, and the Ministry was also ordered to adopt regulations for the registration of unions by branch of activity. In early 2022, the Ministry registered ASTAC as a branch union. The Committee noted that the Ministry and the Office of the Procurator-General had applied for an extraordinary protection order against the ruling for lack of adequate grounds and legal certainty and failure to comply with due process. The Committee notes the indication of the Government, FETRAPEC, PSI in Ecuador and the FUT that a decision on the application for the extraordinary protection order is still pending in the Constitutional Court. The Committee notes the indication of FETRAPEC, PSI in Ecuador and the FUT that the Government has not fully complied with the ruling since it has refused to adopt regulations for the establishment of branch unions, asserting that the ruling on the registration of ASTAC is only applicable between the parties and its legal effects do not extend beyond them. The Committee notes that these issues were examined by the Committee on Freedom of Association (CFA) in Cases Nos 3148 (Reports Nos 381 and 391, March 2017 and October 2019) and 3437 (Report No. 404, October 2023) and that on these occasions the CFA noted with regret that, despite its recommendations and follow-up by the Committee, both the national legislation and the practice of the Ministry of Labour still did not allow the establishment of primary-level unions comprising workers from various enterprises. Recalling once again that, under the terms of Articles 2 and 3 of the Convention, workers must be able, if they so wish, to establish primary-level organizations at a level higher than the enterprise, the Committee reiterates its strong expectation that the above-mentioned ruling will contribute to allowing the establishment of trade union organizations by branch of activity, and also hopes that the Committee’s assessment of this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. The Committee once again urges the Government to take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and to keep it informed of all developments in this respect. The Committee also requests the Government to report on the proceedings before the Constitutional Court relating to the extraordinary protection order and to indicate whether self-employed and informal workers enjoy the rights established in the Convention, specifying the corresponding legislative provisions.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of the Regulations on Labour Organizations No. 0130 of 2013, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their term of office, as set out in their respective union constitutions, to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes the Government’s indication that the Ministry of Labour is currently reviewing a draft reform of the Regulations on Labour Organizations particularly with regard to section 10(c) and that it will keep the Committee informed of progress made. The Committee notes that, according to FETRAPEC, PSI in Ecuador and the FUT, the Government has repeatedly maintained that trade union organizations can regulate in their own constitutions how to proceed in cases where they are without leadership, respecting the unions’ right to draft their constitutions and regulate their own administration; but when it comes to revising the constitutions, the Government demands that the possibility for executive committees to extend their functions should only be allowed “in duly verified cases of force majeure”. The above-mentioned unions also indicate that where unions are without leadership as a result of not convening elections within the deadline specified in the Regulations, this has an impact on federations and confederations because the Ministry of Labour does not recognize decisions taken by these organizations when they have not “registered their executive committees”, thereby limiting second- and third-level organizations’ capacity for action. Recalling that, under Article 3 of the Convention, trade union elections are an internal matter for organizations and must be determined by the union constitutions themselves, and observing that the consequences under the Regulations if the deadlines are not respected – the loss of powers and competencies for trade union committees – run a serious risk of paralyzing the trade union’s capacity for action and limiting the capacity for action of second- and third-level organizations, the Committee once again reiterates its strong expectation that the draft reform will take its comments into consideration, and that section 10(c) will be amended along the lines indicated. The Committee requests the Government to report on all developments in this regard.

Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that, while in 2015 it had noted that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee, in its 2021 comment it observed that section 49 was declared unconstitutional by a ruling of 2018 because it violated the principle of trade union independence by providing that the legislation determined how the executive bodies of enterprise committees were constituted and who had the right to vote in their elections. The Committee noted with regret that, as a result of the declaration of unconstitutionality, section 459(4) had reverted to its original wording, imposing the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The Committee notes the Government’s indication that Constitutional Court rulings are final and are not subject to appeal; that the Constitution guarantees the enjoyment of individual rights under equal conditions for nationals and naturalized foreigners and that the guaranteed rights include the right to elect and be elected. The Committee recalls the Government’s previous indication that Ecuadorian nationality is required to be an officer of an enterprise committee, but not to be a leader or member of other forms of association. In this regard, the Committee noted that, under the terms of the Labour Code, enterprise committees are one of the forms that trade unions can take within an enterprise. The Committee emphasizes once again that, under Article 3 of the Convention, all workers’ and employers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, if permitted under the organization’s constitution and rules, at least after a reasonable period of residence in the host country. The Committee therefore once again urges the Government to amend section 459(4) of the Labour Code and to keep it informed of all developments in this regard.It also invites the Government to bring the Committee’s comments in this regard to the Constitutional Court’s attention.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee had previously indicated to the Government the need to amend section 459(3) of the Labour Code, which provided that the role of officer of an enterprise committee may be filled by any worker, whether or not a union member, who stands for office. The Committee noted that the Constitutional Court ruling of 2018 referred to above also had an impact on the wording of section 459(3), which reverted to its original wording, according to which there is no provision for non-unionized workers to be able to participate in enterprise committee elections. The Committee notes the Government’s indication that Constitutional Court rulings are final and not subject to appeal and that the Government considers it necessary to maintain tripartite dialogue in order to determine the viability of a possible reform of the text in force. Taking due note of these indications, the Committee once again requests the Government to hold consultations with the social partners in relation to the need to amend section 459(3) of the Labour Code to bring it into full compliance with the principle of trade union autonomy and to keep it informed of all developments in this respect.

Application of the Convention in the public sector

Article 2. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public employees were excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that, under Articles 2 and 9 of the Convention, with the sole possible exception of members of the police and of the armed forces, all workers have the right to establish and to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. Noting with regret that the Government has not provided any information in this respect, the Committee once again urges the Government to take the necessary steps to bring the legislation into line with the Convention in such a way that all workers, with the sole possible exception of members of the police and of the armed forces, have the right to establish and to join organizations of their own choosing. The Committee requests the Government to keep it informed of all measures taken in this regard.

Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee previously observed that, according to the provisions of the Basic Reform Act, the committees of public servants, which must comprise “50 per cent plus one” of the staff of a public institution, are responsible for defending the rights of public servants and are the only bodies that can call a strike. Although the Government indicated that public servants, when establishing their organizations, have the right to draft their constitutions, in which they may adopt any means to defend their interests, the Basic Reform Act indicates that the committees of public servants are responsible for defending the rights of public servants and are the only bodies that can call a strike. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee asked the Government to provide information on organizations of public servants other than the committees of public servants and to indicate what means they have for defending the occupational interests of their members. The Committee once more notes with regret that it has not received this information and reiterates its request to the Government to provide information in this respect.Recalling that, under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes, the Committee once against requests the Government to take the necessary steps to ensure that the legislation does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously drew the Government’s attention to the need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes the Government’s indication that the appropriate procedure for public servants to assert the right to strike is regulated in chapter III (on strikes) of the Basic Public Service Act and refers to the provisions of the Act relating to declaring strikes illegal, indicating that the State has recourse to criminal proceedings as a last resort. The Committee notes with regret that the information provided by the Government suggests that no progress has been made on taking account of its comments. The Committee recalls that several trade unions previously indicated that section 346 of the Basic Comprehensive Penal Code was being used to criminalize social protest. The Committee once again strongly urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures are taken, to ensure that this provision is not used to criminalize social protest.

Article 4. Dissolution of associations of public servants by the administrative authorities. Recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of associations of public servants, the Committee previously urged the Government to ensure that the provisions of Decree No. 193, which maintains engagement in party-political activities as grounds for dissolution and provides for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication that the Basic Reform Act establishes that associations of public servants can only be dissolved by judicial ruling. The Committee also recalls that FETRAPEC, PSI in Ecuador and other organizations pointed out that although the provision of Decree No. 193 that maintained engagement in party-political activities as grounds for dissolution was declared unconstitutional in 2022, and that while Decree No. 193 regulates only social organizations and not trade unions, the Government nevertheless applies the grounds for forced dissolution of social organizations to trade unions because it considers that they are “civil society” organizations and not of a trade union nature. In view of the above, and recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of associations of public servants, the Committee urges the Government to ensure that the provisions of Decree No. 193 are not applied to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). After noting the registration of social organizations related to the UNE (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government: (i) to indicate whether the registration of the UNE-E with the Under-Secretariat of Education in Quito meant that the UNE had been able to resume its activities of defending the occupational interests of its members; (ii) to take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) to ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee noted that the UNE had filed several legal actions against the dissolution decision and that the Constitutional Court ruling on an extraordinary protection order was still pending. The Committee notes the indication of FETRAPEC, PSI in Ecuador and the FUT that the Constitutional Court, by Ruling No. 579-18-EP/23 of 12 July 2023, partially admitted the extraordinary protection order, declared that the right to due process had been violated as regards ensuring adequate grounds for public authority decisions, invalidated the ruling of 18 January 2018 (which had dismissed the appeal filed by the UNE chairperson) and ordered that a new associate judge of the Special Chamber for Administrative Disputes at the National Court of Justice, assigned by drawing lots, should decide whether or not to admit the appeal filed by the complainant. FETRAPEC, PSI in Ecuador and the FUT also consider that, irrespective of the judicial decision on this case, the Government could revise its own acts and overturn the administrative act which dissolved the UNE without a judicial order to that effect being essential. The Committee requests the Government to provide information on any ruling handed down by the Special Chamber for Administrative Disputes at the National Court of Justice as well as on whether the Government is able to revise its own acts as suggested by the trade unions, and once again requests the Government to provide the other information requested by the Committee in its previous comment.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 202 4 .]

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

Article 3 of the Convention. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (Basic Reform Act) of 2017 prohibited strikes in the following public services: health, environmental sanitation, education, the justice system, the fire service, social security, electricity, drinking water and sewerage, oil and gas production, the processing, transportation and distribution of fuel, public transport, the postal service and telecommunications. The Committee requested the Government to take the necessary steps to ensure that the legislation did not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes. The Commission notes the Government’s reiteration that depriving the population of public services infringes on their rights and that the Basic Reform Act covers the determination of minimum services to be maintained during a strike. The Committee recalls that the ILO supervisory bodies have considered that it should be possible for strikes to be organized by workers in transport services, the public education service, fuel distribution services and the hydrocarbon sector (2012 General Survey on the fundamental Conventions, paragraph 134). The Committee notes that the Basic Reform Act establishes that, in the absence of an agreement, the arrangements for the provision of minimum services will be established by the Ministry of Labour. The Committee recalls that any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised, and is empowered to issue enforceable decisions (2012 General Survey, paragraph 138). The Committee requests the Government 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 and that the determination of minimum services is in accordance with the above principles.

Determination of minimum services in the private sector. The Committee previously requested 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 reiteration that, if there is no agreement on the carrying out of minimum services, it is up to the Ministry of Labour through the regional directorates to establish procedures for the provision of minimum services. The Committee regrets to note that no progress has been made in taking its comments into account and therefore once again requests the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event the parties disagree concerning the determination of minimum services in the private sector, the decision is not taken by government authorities.

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, and 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 reiteration that mediation is a process undertaken voluntarily and that this process becomes compulsory if differences persist between the parties in situations such as strikes. 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: (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 notes that, according to CEOSL, FETRAPEC, UNE and PSI, the number of strikes in the country has fallen significantly to almost zero since the legislation made it mandatory to submit collective disputes to binding arbitration. 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. The Committee has been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes the Government’s reiteration that federations and confederations of workers play a vital advisory and support role with respect to strike calls by primary-level labour organizations. The Committee also notes that, according to CEOSL, FETRAPEC, UNE and PSI, federations and confederations cannot legally declare strikes because they can only be declared by enterprise-level unions. The Committee recalls that it has considered that strikes are often called by federations and confederations which should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention (2012 General Survey, paragraph 122). The Committee therefore requests the Government to take the necessary legislative measures to ensure that trade union rights, including the right to strike, can be fully exercised by federations and confederations.

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

The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 30 August 2022, which refer to issues that the Committee will examine in this comment. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, which refer to issues examined in this comment and allege the murder on 24 January 2022 of Mr Sandro Arteaga Quiroz, secretary of the Union of Workers of the Manabi Provincial Government, who had allegedly received death threats hours before his murder. The ITUC also alleges clashes between police and protesters in the context of a nationwide strike in October 2021 that culminated in the arrest of 37 protesters. The Committee recalls that the authorities should not resort to arrest and detention measures in cases of organization or participation in a peaceful strike. The Committee deplores the murder of Mr Arteaga Quiroz. Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to life and personal safety, are fully respected and guaranteed, the Committee strongly urges the Government to take without delay all necessary measures to determine responsibility and punish those guilty of this crime.

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 in addition to dealing in detail with issues that the Committee addresses in this comment, allege unjustified delays in the registration of union organizations and new union officers, as well as the refusal to register union organizations for reasons not provided for in the Constitution or in the law. They also point out that the Government is seeking to table in the National Assembly a Bill on a Basic Employment Act, still in draft form, which contravenes the Committee’s comments. The Committee requests the Government to send its comments on all the above-mentioned observations. It also requests the Government to send a copy of the Bill and to keep it informed of any further developments.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes that in the discussion that took place in the Conference Committee on the Application of Standards (hereinafter referred to as the Conference Committee) in June 2022 on the implementation of the Convention by Ecuador, the Conference Committee noted with regret that no action had been taken to follow up on the technical assistance provided by the Office in December 2019 and also noted the long-standing issues regarding compliance with the Convention. The Conference 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 Conference Committee noted that both the Government and the social partners raised the importance of labour law reform and 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. The Conference Committee urged 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 the 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; and
• -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 Conference Committee invited the Government to avail itself of technical assistance from the Office and requested that the Government accept a direct contacts mission and 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.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years the Committee has been drawing the Government’s attention to the need to revise sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes that in its report the Government does not refer to the revision of the articles relating to the number of workers required to form workers' associations and enterprise committees. The Committee notes that CEOSL, FETRAPEC, the UNE and PSI stress that the number of no less than 30 workers for the establishment of trade union organizations is disproportionate and unreasonable in view of the Ecuadorian business structure, stating that persons working in 88.1 per cent of the business sector are not able to form trade union organizations. With regard to the creation of organizations that bring together workers from several enterprises, in its previous comment, the Committee had welcomed the 2021 ruling by the Provincial Court of Justice of Pinchincha ordering the Ministry of Labour to register ASTAC as a branch union, despite the fact that it was made up of workers from several enterprises and also ordering the Ministry to regulate the registration of unions by branch of activity. The Committee notes that the Government, ASTAC and the ITUC report that although ASTAC was granted legal personality on 11 January 2022, in compliance with the ruling, the Ministry and the State Attorney General’s Office filed an extraordinary protection order against the ruling for lack of adequate grounds and legal certainty and non-compliance with due process. The Committee notes that the extraordinary protection order, which has the support of business associations, is pending a decision by the Constitutional Court. It also notes that ASTAC states that the Government has not fully complied with the ruling since, although it has applied it with respect to ASTAC, it has refused to regulate the establishment of branch unions, stating that the ruling is not applicable erga omnes or inter communis (applicable to other parties). The Commission notes with interest the registration of ASTAC as a branch union. Recalling that, under the terms of Articles 2 and 3 of the Convention, workers must be able, if they so wish, to establish primary-level organizations at a level higher than the enterprise, the Committee firmly hopes that the above-mentioned ruling will contribute to enabling the creation of trade union organizations by branch of activity, and also hopes that the Committee’s assessment of this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. The Committee urges the Government to take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and to keep it informed of developments in this respect. The Committee also requests the Government to report on the proceedings before the Constitutional Court regarding the extraordinary protection order.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of the Regulations on Labour Organizations No. 0130 of 2013, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their term of office, as set out in their respective union constitutions, to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes that the Government reports that a draft reform of the Regulations on Labour Organizations is currently being reviewed particularly with regard to section 10(c). Recalling that under Article 3 of the Convention, trade union elections are an internal matter for organizations, and observing that the consequences under the Regulations if the deadlines are not respected—the loss of powers and competencies for trade union committees—risk paralyzing the capacity for trade union action, the Committee firmly hopes that the draft reform will take into consideration its comments, and that the section in question will be modified along the lines indicated. The Committee requests the Government to report on any developments in this regard.

Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that, while in 2015 it had noted that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee, in its most recent comment it observed that section 49 was declared unconstitutional by a ruling of 2018 because it violated the principle of trade union independence by providing that the legislation determined how the executive bodies of the enterprise committees were constituted and who had the right to vote in their elections. The Committee notes with regret that as a result of the declaration of unconstitutionality, section 459(4) has reverted to its original wording and requires Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The Committee notes the Government’s indication that Ecuadorian nationality is required to be an officer of an enterprise committee, but not to be a leader or member of other forms of association. The Committee notes that enterprise committees are one of the forms that trade unions can take within an enterprise. The Committee emphasizes that under Article 3 of the Convention all workers’ and employers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, if permitted under the organization’s constitution and rules, at least after a reasonable period of residence in the host country. The Committee therefore urges the Government to amend section 459(4) of the Labour Code and to keep it informed of any developments in this regard.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee had previously indicated to the Government the need to amend section 459(3) of the Labour Code, which provided that the role of officer of an enterprise committee may be filled by any worker, whether or not a union member, who stands for office. The Committee notes the Government’s indication that the above-mentioned Constitutional Court ruling of 2018 also had an impact on the wording of section 459(3), and that it reverted to its original wording which does not provide for the possibility for non-unionized workers to participate in enterprise committee elections. Taking due note of this information, the Committee requests the Government to hold consultations with the social partners in relation to the need to review section 459(3) of the Labour Code to bring it into full compliance with the principle of trade union autonomy.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public employees were excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that under Articles 2 and 9 of the Convention, with the sole possible exception of members of the police and of the armed forces, all workers, including permanent or temporary public servants and those under fixed-term or occasional services contracts, have the right to establish and to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. The Committee notes that, with regard to public servants under fixed-term or occasional services contracts, the Government merely reiterates that the public institutions of the State are working to ensure that public servants have their respective definitive appointments, provided that their activities are not temporary. The Committee notes with regret that no progress has been made in taking its comments into account in relation to the need to bring the legislation into line with the Convention in such a way that all workers, with the sole possible exception of the members of the police and of the armed forces, have the right to establish and to join organizations of their own choosing. The Committee urges the Government to take the necessary measures to bring the legislation into line with the Convention.

Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee observed that, according to the provisions of the Basic Reform Act, the committees of public servants, which must comprise 50 per cent plus one of the staff of a public institution, are responsible for defending the rights of public servants and are the only bodies that can call a strike. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee requested the Government to provide information on organizations of public servants other than the committees of public servants and to indicate in detail what means they have for defending the occupational interest of their members. The Committee notes the Government’s indication that public servants, when forming their organizations, have the right to draft their statutes in which they may establish any means to defend their interests, emphasizing that public servants’ organizations are legal entities under private law, and therefore may establish any regulation that is not prohibited by law. The Committee notes that it is precisely the Basic Reform Act that indicates that the committees of public servants are responsible for defending the rights of public servants and are the only bodies that can call a strike. It is on this basis that the Committee requested the Government to provide information on organizations of public servants other than the committees of public servants and to indicate what means they have for defending the occupational interest of their members. The Committee regrets that it has not received this information and reiterates its request to the Government to provide information in this respect. Recalling that under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes, the Committee once against requests the Government to take the necessary steps to ensure that the legislation does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously drew the Government’s attention to the need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes that according to the Government, no progress has been made in this regard. The Committee regrets that no action has been taken in this respect and notes that, according to CEOSL, FETRAPEC, the UNE and PSI, the provision in question is being used to criminalize social protest. The Committee strongly urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures are taken, to ensure that this provision is not used to criminalize social protest.

Article 4. Dissolution of associations of public servants by the administrative authorities. The Committee previously asked the Government to take the necessary measures to ensure that Decree No. 193 of 2017, which retains engagement in party-political activities as grounds for dissolution and provides for administrative dissolution, does not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication that labour and social organizations are governed by civil law and that it falls to their members to exercise the rights and obligations recognized by their statutes. The Committee notes that, according to CEOSL, FETRAPEC, the UNE and PSI, the provision of Decree No. 193 that maintained as grounds for dissolution the development of party-political activities was declared unconstitutional by a judgment issued on 27 January 2022 in which the Constitutional Court held that it was not admissible that an open and indeterminate provision could limit the right of social organizations to participate in matters of public interest and to oversee the actions of the public authorities. The Committee notes that these organizations further state that: (i) Decree No. 193 regulates only social organizations and not trade union organizations; (ii) the Labour Code and the Basic Reform Act establish that public servants’ organizations can only be dissolved by judicial decision; and (iii) without prejudice to the foregoing, the Government applies the grounds for forced dissolution of social organizations to trade union organizations. Recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of the associations of public servants, the Committee urges the Government to ensure that the rules of Decree No. 193 are not applied to associations of public servants that have the purpose of defending the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). In its last comment, having noted the registration of social organizations related to the UNE, (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government to: (i) indicate whether the registration of the UNE-E with the Under-Secretariat of Education of Quito meant that the UNE had been able to resume its activities of defending the occupational interests of its members; (ii) take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee notes that, after summarizing the events that have taken place in recent years, the Government indicates that the UNE filed several legal actions against the dissolution resolution and that, to date, although all the actions filed by the UNE have been rejected, the Constitutional Court’s ruling on an extraordinary protection order is still pending, and that, with the Constitutional Court’s decision, the national judicial instances will have been exhausted. The Committee notes that, according to the CEOSL, FETRAPEC, the UNE and PSI, the Government has not complied with the Committee’s request in its previous comments. The Committee requests the Government to provide information on the ruling handed down by the Constitutional Court on the pending extraordinary protection order and to provide the information requested by the Committee in its previous comment.

Technical assistance. Both the Committee and the Conference Committee have noted with regret that the Government has not given follow-up to the technical assistance provided by the Office in December 2019 regarding measures to address the comments of the supervisory bodies. The Committee notes that the Government shows interest in receiving technical assistance to restart tripartite social dialogue and establish a new roadmap in that regard. The Committee expresses the firm hope that, with the technical assistance in which the Government has shown interest, social dialogue will be restarted and progress will be made in taking concrete, effective and time-bound measures, in consultation with the social partners, to bring the legislation into conformity with the Convention. Like the Conference Committee, this Committee hopes that the Government will accept a direct contacts mission and also hopes that the implementation of the measures referred to in this comment will contribute to guaranteeing greater respect for the rights enshrined in the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

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

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.

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

The Committee notes the Government’s reply to the joint observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) and the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020, which are concerned with issues that the Committee examines in the present comment. The Committee also notes the observations of Public Services International in Ecuador (PSI-Ecuador), received on 1 September 2021, which are concerned with issues examined in the present comment, as well as the Government’s reply in this regard.

Technical assistance. The Committee recalls that in December 2019 the Office, at the request of the Government, carried out a technical assistance mission, which presented the tripartite constituents with a draft road map for initiating a tripartite dialogue with a view to adopting measures to address the comments of the ILO supervisory bodies. The Committee notes the Government’s indication that the technical assistance provided in 2019 and the draft road map abovementioned did not result in any practical action. The Committee also takes note of the Government’s indication that for the time being it wishes to receive technical assistance only with regard to tripartite dialogue with the aim of improving and strengthening communication between the Government and the social partners. Noting with regret that no action has been taken to follow up the technical assistance provided by the Office in December 2019 concerning the measures to address the comments of the supervisory bodies, the Committee hopes that the technical assistance that the Government wishes to receive will be provided very soon so that the subsequent strengthening of social dialogue enables progress in taking the necessary measures to bring the legislation into line with the Convention with respect to the points set out below.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years the Committee has been asking the Government to take the necessary steps, in consultation with the social partners, to revise sections 443, 449, 452 and 459 of the Labour Code in such a way as to: (i) reduce the minimum number of members required to establish workers’ associations and enterprise committees; and (ii) enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes the Government’s indication that: (i) fixing a minimum number of workers and limiting associations to the level of an enterprise for the establishment of a trade union is not intended to restrict or limit the creation of this type of organization, but seeks to ensure the representativeness of the trade union organization in its relations with the employers, demonstrating cohesion and agreement on the part of the majority; and (ii) with regard to establishing labour organizations with workers from different enterprises, the Labour Code does not provide for a form of association that would allow for such organizations. In this regard, the Committee recalls that: (i) the requirement of a reasonable level of representativeness to conclude collective agreements must not be confused with the conditions required for the establishment of trade union organizations; (ii) the minimum number of members must be kept within reasonable limits so as not to obstruct the free establishment of organizations as guaranteed by the Convention; and (iii) the Committee generally considers that the requirement of a minimum number of 30 members to establish enterprise unions in countries where the economy is characterized by the prevalence of small enterprises hinders the freedom to establish trade unions. With regard to section 449 of the Labour Code, which requires trade unions to consist of workers from the same enterprise, the Committee recalls that, under Articles 2 and 3 of the Convention, it should be possible to establish primary-level trade unions comprising workers from several enterprises. The Committee recalls that ASTAC, in its observations of 2020, indicated that the Ministry of Labour had refused to register it as a trade union on the grounds that it was not formed of workers from the same enterprise. The Committee notes the Government’s indication, in reply to ASTAC’s observations, that ASTAC brought an action for constitutional protection and, by a ruling issued on 25 May 2021, the Provincial Court of Justice of Pichincha ordered the Ministry, pursuant to revision and analysis of the documents of ASTAC, to proceed with its registration as a trade union and also to regulate the exercise of the right to freedom of association by branch of activity so as to avoid any recurrence of such situations. The Government indicates that, even though it has filed an extraordinary motion for protection which is before the Constitutional Court of Justice, this action does not suspend the obligation to comply with the ruling, and so the Directorate of Labour Organizations at the Ministry of Labour continues to review the requirements of the present procedure for establishing ASTAC, in accordance with the ruling of 25 May 2021. Duly noting the ruling concerning ASTAC, the Committee firmly hopes that steps will be taken to proceed with the registration of ASTAC as a trade union. In particular, the Committee welcomes the fact that the ruling contributes towards enabling the establishment of trade union organizations by branch of activity, and trusts that the Committee’s view on this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. In light of the above, the Committee fully expects that the Government will take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and requests the Government to keep it informed of developments in this respect.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013 issuing regulations on labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their term of office, as set out in their respective union constitutions; such amendment being necessary to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes the Government’s reiteration that the regulations in question were approved with the participation of representatives of several labour organizations and trade union confederations, with the intention of resolving the issues faced by workers’ organizations when the latter are without leadership and it is impossible to convene new elections – providing a responsive, simplified mechanism in which the principles of participation, transparency and democracy predominate. The Government also indicates that, with the objective of providing legal certainty during the health emergency resulting from the COVID-19 pandemic, the Ministry of Labour exceptionally authorized the extension of the terms of office of executive committees of labour organizations for up to 90 days when their terms had expired after the last state of emergency. Recalling that under Article 3 of the Convention, trade union elections are an internal matter for organizations and should primarily be regulated by their constitutions, and observing that the consequences established by the regulations in the event of failure to respect the prescribed deadlines – the loss of powers and competencies for trade union committees – involve a serious risk of paralysing the capacity for trade union action, the Committee once again requests the Government to amend section 10(c) of the regulations in the manner indicated and to keep it informed of any developments in this respect.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that in 2015 it noted with satisfaction that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible for trade union office. The Committee notes that the Government confirms that, as previously indicated by the social partners, section 49 was declared unconstitutional by ruling No. 002-18-SIN-CC of 2018. The Committee requests the Government to send a copy of the aforementioned ruling. The Government indicates in this regard that it is up to the legislative authorities to analyse and, if they see fit, to amend this prohibition. Recalling that under Article 3 of the Convention, workers’ and employers’ organizations should have the right to elect their representatives in full freedom, the national legislation must allow foreign workers to serve as trade union officials if permitted under their constitutions and rules, at least after a reasonable period of residence in the host country, the Committee accordingly requests the Government to amend section 459(4) of the Labour Code and to keep it informed of any developments in this regard.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee previously indicated to the Government the need to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may stand for office only if the enterprise committee’s own statute envisages that possibility. The Committee notes the Government’s indication that the purpose of the legal provision is to ensure that all members have the right to participate and that in any case it will depend on how the right is formulated in the statute. Recalling that the legislative provision enabling workers who are not trade union members to stand for office on an enterprise committee is contrary to trade union independence as recognized by Article 3 of the Convention, the Committee once again requests the Government to take the necessary steps to amend the abovementioned provision of the Labour Code and to keep it informed of any developments in this respect.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public service staff were excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that under Articles 2 and 9 of the Convention, with the sole possible exception of the members of the police and of the armed forces, all workers, including permanent or temporary public servants and those under fixed-term or occasional services contracts, have the right to establish and to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. The Committee notes the Government’s indication that: (i) the public institutions of the State are working to ensure that public servants have their respective definitive appointments, provided that their activities are not temporary; and (ii) public servants on statutory, fixed-term contracts and those who are subject to free appointment and removal from office are officials who technically could perform roles equivalent to those of employers in the private sector, and so their participation in the exercise of public servants’ right and freedom to organize would cause conflicts of interest. In this regard, the Committee is bound to emphasize that even though barring public servants who exercise authority from the right to join trade unions which represent other public sector workers is not necessarily incompatible with the Convention, this depends on two conditions: (i) senior public officials should be entitled to establish their own organizations to defend their interests; and (ii) the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities (see 2012 General Survey on the fundamental Conventions, paragraph 66). In light of the above and once again recalling that under Articles 2 and 9 of the Convention, with the exceptions previously mentioned, all workers have the right to establish and to join organizations of their own choosing, the Committee once again requests the Government to take the necessary measures to bring the legislation into line with the Convention.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee observed that, according to the provisions of the Basic Reform Act and Ministerial Decision MDT-2018-0010 regulating the right to organize of public servants, the committees of public servants, which must comprise “50 per cent plus one” of the staff of a public institution, have the responsibility for defending the rights of public servants and are the only bodies which can call a strike. Recalling that trade union pluralism must be possible in all cases, the Committee has been asking the Government to indicate what means are available to organizations of public servants, other than the committees of public servants, for defending the occupational interests of their members. The Committee notes the Government’s indication that: (i) public servants’ right to organize is duly guaranteed by the Basic Public Service Act (LOSEP) (amended by the Basic Reform Act); and (ii) Decision No. SNGP0008-2014 of the National Policy Management Secretariat promotes the functioning of organizations which exercise the constitutional right of association and organization without there being any legal basis for dealing with these organizations in the Basic Reform Act. The Committee observes that the Decision No. SNGP0008-2014 to which the Government refers, establishes the competencies of the institutions of the State for regulating social organizations created under the Civil Code. It also notes the Government’s indication, in the reply to the observations of PSI-Ecuador, that the LOSEP recognizes the committees of public servants as the only form of organization. In light of the above, the Committee is bound once again to recall that under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee requests the Government to provide information on organizations of public servants other than the committees of public servants and to indicate in detail what means they have for defending the occupational interest of their members. The Committee also requests the Government to provide a copy of the updated text of the LOSEP and to take the necessary steps to ensure that this law does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. The Committee previously asked the Government to take the necessary measures to ensure that the rules of Decree No. 193, which retains engagement in party-political activities as grounds for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication 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. It indicates that the amendment of the Decree is a matter for the President of the Republic in any case. Recalling 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 or administrative dissolution of such associations, the Committee firmly urges the Government to take the necessary steps to ensure that the rules of Decree No. 193 do not apply to associations of public servants which have the purpose of defending the economic and social interests of their members.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously asked the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Government previously indicated that this matter was going to be referred to the relevant state institutions in order to consider whether the Code should be amended. The Committee notes that the Government focuses its reply on emphasizing that public servants’ right to strike is set forth in chapter III of the LOSEP, and that the criminal penalties are only imposed in cases where strikers act unlawfully, namely, by totally blocking access for the general public to public services, committing acts of violence or causing damage to public property. The Committee recalls in this regard that it has continually emphasized that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property) (see 2012 General Survey, paragraph 158). In light of the above, the Committee once again urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code (COIP) is amended in the manner indicated and to keep it informed of any developments in this regard.

Administrative dissolution of the National Federation of Education Workers (UNE). In its last comment, having noted the registration of social organizations related to the UNE, (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government to take the necessary steps to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the organization so requested. It also asked the Government to ensure the full return of the property seized from the UNE as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee notes the Government’s indication that: (i) the UNE opted to register as a social organization and there are no procedures pending at the Ministry of Labour in which the UNE applied for registration as a trade union organization; (ii) in the 2019–21 period, 38 social organizations were registered under the UNE title; and (iii) by a decision of 7 June 2021, the Under-Secretariat of Education of the Metropolitan District of Quito approved the constitution of the organization called the “National Federation of Education Workers (UNE-E)” and granted it legal personality. While duly noting the detailed information from the Government, the Committee notes that, according to PSI-Ecuador, the registration of the UNE as a trade union organization and not as a social organization is facing obstruction because of legal confusion and the lack of application of the Convention in its sector. The Committee requests the Government to indicate whether the registration of the UNE-E with the Under-Secretariat of Education of the Metropolitan District of Quito means that the UNE has been able to resume its activities of defending the occupational interests of its members. The Committee also once again requests the Government to take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wishes. The Committee also once again requests the Government to ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE, and to provide information in this regard.

The Committee notes with regret that to date it has been unable to observe progress on the adoption of measures needed to bring the legislation into line with the Convention. The Committee notes the Government’s indication that, because of the upheaval caused by the COVID-19 pandemic, it is currently giving priority to an Opportunities Bill, which incorporates the different views of the stakeholders in the labour and social spheres and through which the Government is endeavouring to stimulate and revitalize the labour market. While taking due note of these indications, the Committee recalls the fundamental importance of ensuring the full application of the Convention to tackle the consequences of the pandemic and urges the Government to make the necessary efforts to adopt specific measures in relation to the points highlighted in this comment. In this regard, the Committee notes that the Ministry of Labour, through the Directorate of Labour Organizations, expresses the intention of collaborating on any legislative initiative aimed at improving the exercise of workers’ rights. The Committee hopes that the technical assistance that the Government wishes to receive to strengthen social dialogue will be provided very soon and that its results enable progress with regard to the matters raised in the present comment. In this regard, the Committee hopes that any legislative reforms undertaken, in consultation with the social partners, will contribute towards ensuring observance of the rights established by the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2022.]

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee recalls that its earlier comments focused on the following issues.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee observed that, although section 11 of the Basic Reform Act, reforming the legislation governing the public sector (hereinunder Basic Reform Act), adopted in 2017, recognizes the right of public servants to organize, certain categories of public servants are excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed term contracts. The Committee asked the Government to provide detailed information on the categories of public servants excluded from the right to organize and also on the grounds for such exclusion. The Committee notes the Government’s indication that the public institutions of the State are working towards providing public servants with permanent contracts, wherever the activity performed is not temporary. While noting the Government’s indication, the Committee recalls once again that under Articles 2 and 9 of the Convention, with the sole possible exception of the members of the police and of the armed forces, all workers, including permanent or temporary public servants and those under fixed term or occasional services contracts, have the right to establish and join organizations of their own choosing. The Committee requests the Government to take the measures required to bring the legislation into line with the provisions of the Convention mentioned above.

Article 3. Right to strike of public servants. The Committee observed that the Basic Reform Act of 2017 contained excessive restrictions on the right of organizations of public servants to organize their activities and formulate their programmes, as set out in 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, with the possible establishment of minimum services for other public services of fundamental importance; (ii) the establishment of minimum services for public services of fundamental importance should be 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 new 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. In that regard, the Committee notes the Government’s indication that the measures regulating public servants’ right to strike seek to ensure that citizens’ access to public services is not adversely affected when public servants exercise their right to strike. 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, the Committee again requests the Government, in the 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 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 but by a joint or independent body which has the confidence of the parties. In this regard, the Committee notes that the Government reiterates that the role of the labour inspectorate and of the conciliation and arbitration boards is to moderate the dialogue and negotiation between the parties, without any form of interference. While taking due note of the Government’s indications, the Committee observes that section 515 establishes that where there is no agreement, the modalities for the provision of minimum services shall be decided by the Ministry of Labour and Employment, and in this regard the Committee considers that in the event of disagreement between the parties on the determination of minimum services in the private sector, the government authorities should appoint an independent, joint body to determine them. The Committee therefore again requests the Government to take the necessary steps to amend section 515 of the Labour Code in that respect.

Compulsory arbitration in the private sector. Observing that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration boards, the Committee requested the Government to clarify to what extent the authority of the conciliation and arbitration boards restricted the right to strike of workers’ organizations in the private sector. In that regard, the Committee takes note of the Government’s indication that the boards are composed of workers’ and employers’ representatives, and that therefore they participate in the board’s decisions. While taking due note of the Government’s indications, the Committee considers 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 or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the Committee again asks 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 asked the Government to indicate whether the legislation recognized the right to strike of federations and confederations and to provide information on general strikes convened by them and on any dissuasive action by the State. In that connection the Committee notes that, on the one hand, the Government indicates that: (i) there is no legal limitation of the right to strike of federations and confederations; (ii) in recent years, federations and confederations have on several occasions convened general strikes, and (iii) those strikes were not considered illegal wherever they did not provoke a stoppage of the public services. On the other hand, the Committee notes the Government’s indication that collective agreements are signed with primary-level organizations and that the federations and confederations play a decisive role, providing advice and support to primary-level organizations in declaring strikes. The Committee requests the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations and to provide information on the general strikes convened by them and on the action that has been or may be taken by the public authorities in respect of such strikes.

The Committee notes with regret that, having made available the technical assistance requested, there has been no discernible progress to the present date in respect of measures necessary to bring the legislation into conformity with the Convention. The Committee most particularly regrets that it has received no information from the Government relating to the follow-up given to the Office’s December 2019 mission. The Committee urges the Government to intensify its efforts to adopt the necessary measures regarding the points raised in the Committee’s comments. In that regard, noting the Government’s indication that the Ministry of Labour envisaged holding round-table dialogues with certain employers’ and workers’ organizations at the end of 2020, the Committee urges the Government to facilitate constructive dialogue with all representative employers’ and workers’ organizations with a view to obtaining tangible and sustainable results. The Committee requests the Government to keep it informed in that regard.

[The Government is asked to reply in full to the present comments in 2021.]

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the Government’s response to the observations of Public Services International in Ecuador (PSI-Ecuador) of August 2019.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020, as well as the Government’s reply thereon.

The Committee further notes the observations of PSI-Ecuador received on 25 September 2020, as well as the joint observations submitted by the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC) and the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020. The Committee notes that these observations apply in large part to the issues examined in the present comment.

Technical assistance

In its last comment, the Committee welcomed the Government’s request to the ILO for technical assistance regarding the process of legislative reform, with a view to addressing the observations and recommendations of the ILO supervisory bodies. For that reason, the Committee’s comment was restricted to a brief summary of the issues that remained to be resolved, having expressed trust that the technical assistance provided would enable the Government to take the necessary measures regarding those issues. The Committee takes note of the report of the technical assistance mission carried out in Ecuador from 16 to 20 December 2019. In that regard, it notes that the Mission: (i) presented a road map to the tripartite constituents, which aimed at reflecting the principal subjects discussed in the meetings and which foresaw that the parties would engage in tripartite dialogue, starting in March 2020, with the technical assistance of the ILO. The dialogue would seek to adopt concrete measures to address the comments of the ILO supervisory bodies, and (ii) encouraged the tripartite constituents to finalize the road map as fast as possible and invited them to continue the dialogue with a view to finding tangible and sustainable results. The Committee regrets to observe that the Government’s report makes no reference either to the technical assistance mission or to the road map. In that connection, it notes the allegations of PSI-Ecuador that the Government has failed to fulfil its commitment to the Mission to convene a further tripartite meeting in January 2020 to sign the road map.

The Committee recalls below the points it highlighted in its previous comments, which call for the implementation of concrete measures to bring the legislation into full conformity with the Convention.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee observed that the Basic Reform Act, reforming the legislation governing the public sector (Basic Reform Act), adopted on 19 May 2017, established the concept of the “committee of public servants” with the purpose of guaranteeing certain prerogatives to the most representative organization of public servants in every public institution (comprising 50 per cent plus one of the staff). The Committee noted that even though section 11 of the Basic Reform Act does not prohibit the possibility of establishing several trade unions at the same public institution, it does envisage and regulate the exercise of various collective rights of public servants only by the committee of public servants, since there can only be one such body in a public institution in view of its obligation to comprise “50 per cent plus one” of the staff. Recalling that under Article 2 of the Convention, trade union pluralism must be possible in all cases, the Committee requested the Government to provide information on the manner in which organizations of public servants other than committees of public servants are able to represent and defend the interests of their members. In that connection, the Committee notes the Government’s indication that the Basic Reform Act recognises the right of public servants to organize for the defence of their rights, to improve the provision of public services, and to exercise the right to strike. The Committee observes however, that (i) the second transitional provision of the Basic Reform Act establishes that the Ministry of Labour issues the Ministerial Decisions required to implement the provisions of the Act; (ii) on 5 February 2018, the Ministry issued Ministerial Decision MDT-2018-0010 regulating the right to organize of public servants; (iii) section 21 of that Ministerial Decision provides that committees of public servants are responsible for defending the rights of public servants, for improving provision of public services and for the exercise of the right to strike; and (iv) section 24 of the Ministerial Decision indicates that a strike may only be declared by the committees of public servants of public institutions. The Committee once again recalls that under Article 2 of the Convention trade union pluralism must be possible in all cases. It also recalls that the most representativity should not result in the trade union that obtains such status being granted privileges which go beyond priority in representation for the purposes of collective bargaining, consultation by the authorities or the appointment of delegates to international bodies. The Committee therefore again requests the Government to indicate the means available to the organizations of public servants, other than the committees of public servants, within the framework of the Basic Reform Act and the Ministerial Decision, of defending the occupational interests of their members, of organizing their administration and activities, and of formulating their programmes, in conformity with the Convention.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. The Committee asked the Government to take the measures necessary so that the rules of Decree No. 193, which retains engagement in party-political activities as grounds for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. In that connection, the Committee notes the Government’s indication that, in compliance with section 226 of the Constitution, the institutions, agencies, departments and men and women public servants of the State, as well as those persons acting on behalf of a State authority, exercise only the powers and prerogatives conferred on them by the Constitution and the law. Recalling once more that the defence of 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 administrative suspension or dissolution thereof, the Committee again requests the Government to take the necessary steps to ensure that the rules referred to in Decree No. 193 do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). In its previous comments, following up the conclusions of the International Labour Conference Committee on the Application of Standards of June 2017, the Committee expressed its deep concern at the administrative dissolution of the UNE and urged the Government to take all necessary steps as a matter of urgency to revoke that decision so that the UNE could immediately resume its activities. In its last comment, the Committee expressed that it was encouraged by the initiation of dialogue between the Government and the UNE as well as by the repeal of Decree No. 16, which constituted one of the legal bases for the dissolution of the UNE. The Committee noted that the repeal of this decree allowed for the revocation of the dissolution of several social organizations and expressed the expectation that the Government would soon be in a position to report the revocation of the dissolution of the UNE so that this organization could immediately resume its activities to defend the occupational interests of its members. The Committee notes that the Committee on Freedom of Association refers to this issue when examining Case No. 3279 and, on that occasion, trusted that the necessary measures would be taken to ensure that the UNE could register as a trade union with the Ministry of Labour, if the organization so requested. The Committee further urged the Government to take all necessary measures to ensure the full return of the property seized from the organization as well as the elimination of any other consequences resulting from the administrative dissolution of the UNE (see 391st Report, October 2019, Case No. 3279). The Committee notes the Government’s indication in its report that: (i) the dissolution and liquidation of UNE complied with due process; (ii) all legal actions filed by UNE against the administrative dissolution were overturned by the competent courts; and (iii) during the June 2019 to June 2020 period, five social organizations related to the UNE had been constituted, including the National Union of Education Workers – National Federation of Educational Personnel (UNTE-UNE), and registered in July 2020. While duly noting the registration of the UNTE-UNE, an organization of social nature related to the UNE, the Committee requests the Government to take the steps necessary to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the organization so requests. It also asks the Government to ensure the full return of the property seized from the organization as well as the elimination of any other consequences resulting from the administrative dissolution of the UNE, and to inform of all developments in that regard.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee asked the Government, in consultation with the social partners, to take the necessary steps to revise sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises. In that regard, the Committee notes the Government’s indication that the purpose of fixing a minimum number of workers and of limiting associations to the level of an enterprise for the establishment of a trade union is not intended to discourage or restrict the creation of that type of organization, but to seek to ensure the representativeness, cohesion and agreement of the trade union organization in its relations with the employers. The Committee further observes that the Committee on Freedom of Association dealt with this issue in its most recent examination of Case No. 3148 (see 391st Report, October 2019), and on that occasion, the Government reported that: (i) on 13 March 2018 a proposal was made to reform Ministerial Decision No. 0130 of 2013 (article 2(2) of which sets the minimum number of members to form a trade union at 30), replacing the number 30 with an indication that the minimum membership would be established by the Labour Code; and (ii) the National Labour and Wage Board, a tripartite body, would have the responsibility for defining the minimum number of members and the criteria for defining it. The Committee requests the Government to provide information in that regard and urges the Government, in consultation with the social partners, to take the necessary steps to amend sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises.

Article 3. Compulsory time limits for convening trade union elections. The Committee asked the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their mandate, as set out in their respective union constitutions, so as to ensure that, subject to the observance of democratic rules, the consequences of any delay in holding elections shall be determined by the union constitutions themselves. The Committee notes the Government’s indication that several labour organizations and trade union federations took part in the approval of the Labour Organization Regulations, with the aim of solving the problem faced by workers’ organizations when the absence of leadership makes it impossible to convene new elections, and establishing an agile, simplified mechanism, based on the principles of participation, transparency and democracy. The Committee recalls that, under Article 3 of the Convention, trade union elections are an internal matter for the organizations and should be regulated primarily by their constitutions. The Committee therefore requests the Government to amend article 10 of the Labour Organization Regulations No. 0130 of 2013 to provide that, in compliance with any democratic rules, the consequences of any delay in convening trade union elections are set out in the constitutions of the organizations themselves.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that in its 2015 observation it noted with satisfaction that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible for trade union office. The Committee observes, nevertheless, that according to the comments of ASTAC and CEDOCUT section 49 of the Labour Justice Act has been declared unconstitutional under decision 002-18-SIN-CC of 21 March 2018. The Committee recalls that the national legislation must allow foreign workers to serve as trade union officials, at least after a reasonable period of residence in the host country. The Committee requests the Government to explain the consequences of the above decision of the Constitutional Court on the right of foreign workers to serve as trade union officials.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee notes that, in the public administration, the Basic Reform Act provides that only members of the committee of public servants may become enterprise committee officers. In that regard, the Committee again expects that the Government will take the necessary steps to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may stand for office only if the enterprise committee’s own statute envisages that possibility.

Article 3 of the Convention. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. The Committee asked the Government to take the measures required to amend article 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for obstructing or stopping the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. In that regard, the Committee notes from the Government’s report that the request to amend the COIP is to come before the relevant State institutions, for consideration as to whether to proceed with the amendment. The Committee requests the Government to inform in this connection.

The Committee notes with regret that, having made available the technical assistance requested, there has been no discernible progress to the present date in respect of measures necessary to bring the legislation into conformity with the Convention. The Committee most particularly regrets that it has received no information from the Government relating to the follow-up given to the Office’s December 2019 mission. The Committee urges the Government to intensify its efforts to adopt the necessary measures regarding the points raised in the Committee’s comments. In that regard, noting the Government’s indication that the Ministry of Labour envisaged holding round-table dialogues with certain employers’ and workers’ organizations at the end of 2020, the Committee urges the Government to facilitate constructive dialogue with all representative employers’ and workers’ organizations with a view to obtaining tangible and sustainable results. The Committee requests the Government to inform in that regard.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2021.]

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee recalls that in its previous comments it requested the Government to:

• -provide detailed information on the categories of public servants excluded from the right to organize and also the grounds for such exclusion;
• -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 to formulate their programmes;
• -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 but by a joint or independent body which has the confidence of the parties;
• -initiate discussions with the social partners on the possibility of amending article 326(12) of the Constitution and the related legal provisions so as to ensure that compulsory arbitration is possible only in cases where strikes may be limited or even prohibited, namely, as far as the private sector is concerned, in essential services in the strict sense of the term or in the event of an acute national crisis; and
• -report on any progress with regard to the recognition of the right to strike of federations and confederations.

The Committee trusts that the technical assistance which will be afforded shortly will enable significant progress to be made in relation to the above issues, which will be examined by the Committee at its 2020 session.

[The Government is asked to reply in full to the present comments in 2020.]

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the Government’s response to the joint observations of Public Services International in Ecuador (PSI–Ecuador) and the National Federation of Education Workers (UNE) of 2017. The Committee also notes the joint observations of PSI–Ecuador and UNE, received on 31 August 2018 and 28 August 2019, as well as the observations of the International Trade Union Confederation (ITUC), received on 1 September 2019, which refer to the matters examined within the framework of the present Convention.

The Committee welcomes the Government’s request to the ILO for technical assistance regarding the process of legislative reform, with a view to addressing the observations and recommendations of the ILO supervisory bodies. The Committee trusts that this technical assistance will enable the Government to take the necessary measures regarding the issues raised in previous comments with respect to the present Convention, which are recalled below.

Regarding the application of the Convention in the public sector, the Committee requested the Government to:

• -provide information on the mechanisms which enable organizations of public servants, other than the committees of public servants, to represent and defend the interests of their members;
• -take the necessary steps to ensure that the rules referred to in Decree No. 193, which retains engagement in party-political activities as grounds for dissolution and provides for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members; and
• -encouraged by the initiation of dialogue between the Government and the UNE and by the repeal of Decree No. 16, which constituted one of the legal bases for the dissolution of the UNE and for the revocation of the dissolution of several social organizations, the Committee trusted that the Government would soon be in a position to report the revocation of the dissolution of the UNE so that this organization can immediately resume its activities to defend the occupational interests of its members.

Regarding the application of the Convention in the private sector, the Committee requested the Government to:

• -in consultation with the social partners, take the necessary measures to reform sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises;
• -amend section 10(c) of Ministerial Decision No. 0130 of 2013, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their mandate, as set out in their respective union constitutions, so as to ensure that, subject to the observance of democratic rules, the consequences of any delay in holding elections shall be determined by the union constitutions themselves;
• -take the necessary measures to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may only stand for office if the enterprise committee’s own constitution envisages that possibility; and
• -take the necessary steps to amend section 346 of the Basic Comprehensive Penal Code, which provides for imprisonment of one to three years for any person who obstructs or stops the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike.

Welcoming the Government’s engagement with the Office on these matters, the Committee trusts that the technical assistance will enable significant progress to be made.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2020.]

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join the organizations of their own choosing. The Committee observes that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted on 19 May 2017, recognizes the right to organize of public servants, certain categories of staff are excluded from this right, in particular staff on occasional service contracts, staff subject to free appointment and removal, and public servants exercising duties on the basis of a statutory fixed-term appointment. The Committee recalls that, under the term of Articles 2 and 9 of the Convention, all workers, including public servants, with the sole possible exception of members of the police and the armed forces, have the right to establish and join organizations of their own choosing. The Committee therefore requests the Government to provide detailed information on the categories of public servants excluded from the right to organize and also on the grounds for such exclusion.

Right to strike of public servants. In its previous comments, after asking the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants, the Committee noted that the draft to the Basic Act reforming the legislation governing the public sector contained significant restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes. The Committee notes the Government’s indications regarding the provisions of the Basic Reform Act adopted on 19 May 2017 relating to the right to strike of public servants and the observations of the National Federation of Education Workers (UNE) and Public Services International in Ecuador (PSI-Ecuador) concerning various aspects of the aforementioned provisions. The Committee welcomes the fact that the new Act, giving effect to article 326.16 of the Constitution, as amended in December 2015, explicitly recognizes the right to strike of public servants. However, the Committee considers that, even though restrictions on the right to strike, in particular the restriction or even prohibition of the right to strike for public servants exercising authority in the name of the State, are acceptable to protect the basic interests of the community, the new Act has introduced excessive restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes, as recognized by Article 3 of the Convention. The Committee considers 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, with the possible establishment of minimum services for other public services of fundamental importance; (ii) the establishment of minimum services for public services of fundamental importance should be 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 new 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 even 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 an acute national crisis. 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, the Committee requests the Government 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 to formulate their programmes. Taking due note of the technical assistance agreed upon with the Office, the Committee requests the Government to keep it informed of all progress made in this regard.

Determination of minimum services in the private sector in the event of disagreement between the parties. In its previous comments, the Committee 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 but by a joint or independent body which has the confidence of the parties. In this regard, the Committee notes the Government’s indication that: (i) the labour inspectorate is an independent authority of the Government despite being part of the Executive Authority; (ii) within the conciliation and arbitration board, the authority merely directs and ensures the due implementation of the process; and (iii) consideration will, however, be given to the possibility of adopting the Committee’s recommendations. Encouraged by the Government’s indications and by the technical assistance agreed upon with the Office, the Committee expects that the Government will be in a position to specify in its next report the measures taken to amend section 545 of the Labour Code as indicated.

Compulsory arbitration in the private sector. With regard to article 326(12) of the Constitution, which provides that collective labour disputes shall, in all instances, be referred to conciliation and arbitration boards, the Committee encouraged the Government to initiate discussions with the social partners on the possibility of amending article 326(12) of the Constitution and the related legal provisions so as to ensure that compulsory arbitration is possible only in cases where strikes may be limited or even prohibited, namely, as far as the private sector is concerned, in essential services in the strict sense of the term or in the event of an acute national crisis. In this regard, the Committee notes the Government’s indication that: (i) the use of the conciliation and arbitration boards is the most effective way of ensuring immediate and rapid handling of collective labour disputes; and (ii) no attempt has ever been made to impose decisions in a labour dispute; on the contrary, efforts are always made to find a peaceful solution. Observing that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration boards, the Committee requests the Government to clarify to what extent the authority of the conciliation and arbitration boards restricts the right to strike of workers’ organizations in the private sector and to take account of the Committee’s previous comments on this matter in the context of the legal reform process which is under way.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, the Committee asked the Government to indicate whether the legislation recognized the right to strike of federations and confederations and to provide information on general strikes called by them and on any dissuasive action by the State. The Committee notes the Government indication that: (i) the collective nature of the right to strike explains the provisions of the Labour Code which require a majority vote of the members at enterprise level and not the support of one organization in particular; and (ii) consideration will, however, be given to the Committee’s recommendation. Encouraged by the Government’s indications and by the technical assistance agreed upon with the Office, the Committee expects that the Government will be in a position to indicate progress, in its next report, regarding recognition of the right to strike of federations and confederations.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the joint observations of the National Federation of Education Workers (UNE) and Public Services International in Ecuador (PSI–Ecuador), received on 1 September 2017, which refer to matters examined by the Committee and also to allegations of violations of the Convention in practice, relating in particular to the refusal to register a number of trade union organizations. The Committee requests the Government to send its comments on the aforementioned allegations.

The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2017, which refer to matters examined by the Committee in the present comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 106th Session, June 2017)

The Committee notes the discussion held in the Conference Committee on the Application of Standards (the Conference Committee) in June 2017 on the application of the Convention by Ecuador. The Committee notes in particular that the Conference Committee asked the Government to: (i) ensure full respect for the right of public servants to establish organizations of their own choosing for the collective defence of their interests, including the protection regarding administrative dissolution or suspension; (ii) revoke the decision to dissolve the UNE and to allow the free functioning of the trade union; (iii) amend legislation to ensure that the consequences of any delay in convening trade union elections are set out in the by-laws of the organizations themselves; and (iv) initiate a process of consultation with the most representative employers’ and workers’ organizations to identify how the current legislative framework needs to be amended in order to bring all the relevant legislation into compliance with the text of Convention No. 87.

The Committee invited the Government to consider availing itself of ILO technical assistance in relation to the legal reform process. In this respect, the Committee welcomes that the Government has agreed with the Office on the provision of technical assistance in the context of the legislative reforms under way.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Impossibility of establishing more than one trade union in state bodies. In its previous comments, referring to article 326(9) of the Constitution, which provides that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization, and to a proposed reform of the Basic Act to implement that provision of the Constitution, the Committee asked the Government to take the necessary measures immediately to ensure that both the Constitution and the legislation preserve the possibility of trade union pluralism in state institutions. In this regard, the Committee notes that the Government refers to the adoption on 19 May 2017 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act). The Committee notes the Government’s specific indications that: (i) the Basic Reform Act guarantees without restriction public servants’ right to organize and the possibility of establishing more than one trade union in public sector institutions; (ii) the Basic Reform Act establishes the concept of the “committee of public servants” (CSP); and (iii) the purpose of introducing this concept is to guarantee certain prerogatives to the most representative organization of public servants in every public institution, without in any way restricting the possible co-existence of several trade unions in the public sector. The Committee also notes the joint observations of the PSI–Ecuador and the UNE maintaining that creating or establishing the CSP, which must comprise at least “50 per cent plus one” of public servants in a given institution, violates the provisions of the Convention.

With regard to the concept of the CSP, the Committee notes that section 11 of the Basic Reform Act adopted in May 2017 follows the guidelines of the Bill examined by the Committee in its last comment. In this respect, the Committee observes that: (i) the CSP displays all the characteristics of a workers’ organization, with its membership, constitution and executive committee; (ii) the CSP has all the powers to promote and defend the collective interests of public servants recognized by law (especially the right to monitor the observance of labour law, the right to social dialogue and the right to strike); (iii) even though the Basic Reform Act recognizes in general terms and without restrictions the right of public servants to establish trade unions, the Act does not explicitly envisage or regulate alternative forms of organization to the CSP whereby public servants could defend their collective interests and exercise the aforementioned collective rights; and (iv) in being obliged to comprise at least “50 per cent plus one” of public servants, there can only be one CSP for each public institution. The Committee observes that it can be concluded from the above that even though section 11 of the Basic Reform Act does not prohibit the possibility of establishing several trade unions at the same public institution, it does envisage and regulate the exercise of various collective rights of public servants only by the CSP, since there can only be one such body in a public institution in view of its obligation to comprise “50 per cent plus one” of the staff.

The Committee recalls that under the terms of Article 2 of the Convention, trade union pluralism must be possible in all cases. In this regard, the Committee reminds the Government that workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the prohibition of other trade unions which workers would like to join, or in the granting of privileges such as to influence unduly the choice of organization by workers. This distinction should not therefore have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means of defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), of organizing their administration and activities, and formulating their programmes, as provided for in the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 97). The Committee therefore requests the Government to provide additional information on the manner in which organizations of public servants other than CSP are able to represent and defend the interests of their members vis-à-vis the authorities.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015). In its previous comments, the Committee observed that Executive Decrees Nos 16 and 739 envisaged broad grounds for the administrative dissolution of social organizations and that the aforementioned Decrees applied to associations of public servants not registered at the Ministry of Labour but at their respective ministries. The Committee urged the Government to adopt the necessary reforms so that occupational associations of public servants are not subject to grounds for dissolution which prevent them from exercising in full their mandate of defending their members’ interests, and are not subject to administrative dissolution or suspension.

The Committee welcomes the Government’s indication that Executive Decrees Nos 16 and 739 have been repealed by Decree No. 193 of 24 October 2017. The Committee observes that even though the purpose of the new Decree is to reduce to a minimum any superfluous administrative requirements for social organizations and to reduce the grounds for dissolution, the Committee notes that the new Decree retains engagement in party-political activities as grounds for dissolution and that the new Decree continues to provide for administrative dissolution. Recalling once again that the defence of 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 administrative suspension or dissolution thereof, the Committee requests the Government to take the necessary steps to ensure that the rules referred to in Decree No. 193 do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the UNE. In its previous comments, the Committee expressed its deep concern at the administrative dissolution of the UNE and urged the Government to take all necessary steps as a matter of urgency to revoke that decision so that the UNE can immediately resume its activities. The Committee notes the Government’s indication that, as part of the commitment to dialogue which is a hallmark of the new Government, contacts have been established between the Ministry of Labour and the UNE lawyer to explore alternatives to the dissolution and liquidation of the UNE. As a result of these contacts, the Government has concluded that: (i) the UNE is not a trade union since it was never registered with the Ministry of Labour; (ii) the competent authority for revoking the administrative act of dissolution and liquidation is the Ministry of Education; (iii) the UNE challenged the legality of the aforementioned administrative act in the Administrative Court of the city of Quito; consequently, in view of the separation of powers, the corresponding judicial ruling must be awaited; and (iv) the Ministry of Labour invited the UNE to initiate the administrative procedure for trade union registration with the Ministry of Labour. The Committee emphasizes once again that, beyond their formal title, associations of workers, including public or private teachers, which have the purpose of defending the occupational interests of their members are covered by the provisions of the Convention, and also that the obligation to comply with the Convention is not limited to the Ministry of Labour but extends to all authorities and institutions in the country. The Committee also recalls once again that the administrative dissolution of organizations of workers, including teachers, constitutes a serious violation of the Convention. Encouraged by the initiation of dialogue between the Government and the UNE and by the repeal of Decree No. 16, which constituted one of the legal bases for the dissolution of the UNE and for the revocation of the dissolution of several social organizations, the Committee expects that the Government will soon be in a position to report the revocation of the dissolution of the UNE so that this organization can immediately resume its activities to defend the occupational interests of its members.

Application of the Convention in the private sector

Article 2. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee recalls that since the legislative reform of 1985, which increased the minimum number of members required from 15 to 30, it has been asking the Government to reduce the minimum number of workers required by law to establish workers’ associations or enterprise committees. The Committee also observes that the Committee on Freedom of Association (CFA) referred the follow-up of the legislative aspects of Case No. 3148 to it (see 381st Report, March 2017, paragraph 442). In this case, regarding the impossibility for a sectoral trade union in the banana sector to secure its registration for having members working at several enterprises, the CFA noted the Government’s indication that the establishment of a trade union comprising workers from several enterprises conflicted with section 449 of the Labour Code, which provides that the officers of workers’ associations of any kind must be workers of the enterprise concerned. On the basis of the above, the CFA asked the Government to take the necessary steps not only to reduce the minimum number of members required to establish an enterprise union but also to make it possible to establish primary-level unions comprising workers from several enterprises. The Committee notes the Government’s indication that the purpose of setting a minimum number of members is to establish the representative status of trade unions and that the possibility of considering the recommendation of the Committee of Experts will be examined in the context of the current legal reform process. The Committee recalls once again that the requirement of a reasonable level of representativeness for concluding collective agreements must not be confused with the conditions required for the establishment of trade union organizations. The Committee also recalls that, under the terms of Articles 2 and 3 of the Convention, workers must have the possibility, if they so wish, to establish primary-level organizations at a level higher than the enterprise. The Committee expects that the legal reform process under way will contribute towards the amendment of sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises.

Article 3. Compulsory time limits for convening trade union elections. In its previous comments, taking account of observations from various trade union organizations alleging a violation of trade union autonomy, the Committee asked the Government to provide information on the application in practice of section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their mandate, as set out in their respective union constitutions. The Committee notes the Government’s indication that: (i) the purpose of Ministerial Decision No. 0130 is to give effect to article 326.8 of the Constitution; (ii) the trade unions are requesting that the standards of civil or company law be used which provide that officers shall remain in office until they are legally replaced; and (iii) the Ministry of Labour, in conjunction with the National Assembly, is instigating the preparation of a new Basic Code of Labour and Employment Promotion which will include a legislative proposal relating to this matter. The Committee expects that the new legislation to be adopted will provide that, subject to the observance of democratic rules, the consequences of any delay in holding elections shall be determined by the union constitutions themselves.

Election as officers of enterprise committees of workers who are not trade union members. In its previous comment, the Committee considered that the imposition by law that workers who are not union members may stand for election as officers of the enterprise committee is contrary to the trade union autonomy recognized by Article 3 of the Convention, and it asked the Government to take the necessary measures to amend section 459(3) of the Labour Code. The Committee notes the Government’s indication that the purpose of the legislation in force is to ensure the democratic election of the officers of the enterprise committee but that the point raised by the Committee will be examined in the context of the current legal reform process. Observing that the new Basic Reform Act provides that only members of the “committee of public servants” may become its officers, the Committee expects that the Government will take the necessary steps to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may only stand for office if the enterprise committee’s own constitution envisages that possibility.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee urged the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for any person who obstructs or stops the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. In this regard, the Committee notes the Government’s indication that: (i) the criminal law definition established by section 346 of the COIP is indeed not limited to acts of violence but covers all acts that have the effect of obstructing or stopping the normal provision of a public service, thereby protecting the general interest; (ii) however, it is not the purpose of the aforementioned provision of the COIP to penalize the legitimate exercise of the right to strike; and (iii) the national legislation establishes requirements for calling a strike in the public sector, with a prohibition on the deprivation of fundamental services, including health care, education and energy.

The Committee reiterates that, even though certain restrictions on the right to strike are acceptable to protect the basic interests of the community, criminal penalties should be envisaged only where, during a strike, violence against persons or property, or other serious infringements of criminal law have been committed (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property) (see the 2012 General Survey on the fundamental Conventions, paragraph 158). In this regard, the Committee also emphasizes that a broad criminal law definition imposing imprisonment for any obstruction of the normal provision of a public service, combined with uncertainty over the legality of a strike, may have an excessively deterrent effect on the legitimate exercise of collective rights. In the light of the above, the Committee urges the Government once again to take the necessary steps to amend section 346 of the COIP as indicated, and to provide information on all progress made in this respect.

Recalling that the Government has agreed with the Office on the provision of technical assistance, the Committee expects that the Government will very soon be in a position to report the adoption of legislative provisions that take account of the comments that the Committee has been making for a number of years regarding both the public and private sectors.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 3 of the Convention. Right to re-election of officers of workers’ and employers’ organizations. With reference to article 326(8) of the Constitution, which provides that the State shall promote the democratic, participatory and transparent functioning of workers’ and employers’ organizations, including the alternation of their officers, the Committee recalled previously that any legislative provision which restricts or prohibits re-election to trade union office is incompatible with the Convention and it requested the Government to continue providing information on the functioning in practice of trade union elections. In this regard, the Committee takes due note of the Government’s reiterated indication that this constitutional provision does not authorize the State to interfere at any time in the trade union affairs of labour organizations and that there is no legal provision whatsoever establishing limits on the election of the officers of labour organizations.

Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Right to strike of public servants. In its previous comments, observing that public servants are not governed by the Labour Code, the Committee requested the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants. In this regard, the Committee notes the Government’s indication that article 326(16) of the Constitution, as amended in December 2015, explicitly recognizes the right to strike of public servants in accordance with the Constitution and the law, and that the Basic Act on the Public Service (LOSEP) is being revised to bring it into conformity with the reform of the Constitution. While welcoming the adoption of this new constitutional provision, the Committee notes that Public Services International (PSI) and the National Federation of Education Workers (UNE) provide with their observations the text of the Bill to reform the legislation governing the public sector, which is currently being examined by the National Assembly. The Committee observes that the text of the Bill that it has been able to examine contains significant restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes with regard, among other matters, to: (i) the reasons for which a strike may be called; (ii) the majority required to call a strike; (iii) the applicability and determination of minimum services; and (iv) the mechanisms governing the ending of a strike. Emphasizing that the satisfaction of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, the Committee requests the Government to ensure that the right of organizations of public servants to organize their activities and to formulate their programmes is not unduly restricted. The Committee requests the Government to provide information on this subject and recalls that it may have recourse to the technical assistance of the Office.

Determination of minimum services in the event of disagreement between the parties. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 515 of the Labour Code to ensure that, in the event of the failure of the parties to reach agreement concerning the determination of minimum services, the decision is not taken by the Government authorities, but by a joint or independent body which has the confidence of the parties. In this regard, the Committee notes the Government’s indication that: (i) the labour inspection services and Regional Labour Directorates, which exercise administrative authority in labour matters, do not act with bias in favour of the State, and, moreover, have clear legal obligations which they must fulfil subject to legal liability; and (ii) the establishment of a collegial body for this purpose would take longer and would hinder the exercise of the right to strike. The Committee wishes to emphasize that, without prejudice to the integrity and objectivity with which the labour administration services discharge their functions, the Committee has always considered that, in the context of a strike, these services, as they are part of the Government authorities, do not meet the necessary conditions to be able to comply with Article 3(2) of the Convention. Emphasizing the possibility of joint or independent bodies to flexibly and effectively determine minimum services in the event of disagreement between the parties, the Committee once again invites the Government, in consultation with the social partners, to amend section 545 of the Labour Code as indicated above. The Committee trusts that the principles referred to above will also be taken into consideration in the context of the examination of the Bill to reform the legislation governing the public sector.

Compulsory arbitration. With reference to article 326(12) of the Constitution, which provides that collective labour disputes shall, in all instances, be referred to conciliation and arbitration boards, the Committee requested the Government to take the necessary measures to amend the legislative provisions so as to ensure that compulsory arbitration is possible only in cases in which strikes may be limited, or even prohibited, that is in disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. In this regard, the Committee notes the Government’s indication that: (i) under the terms of article 95 of the Constitution, workers and employers may opt for alternative methods for the resolution of disputes; (ii) the Conciliation and Arbitration Tribunal only intervenes in the final instance; and (iii) this Tribunal offers a suitable and flexible manner of resolving labour disputes and protecting labour rights. The Committee also notes the observations of the National Federation of Chambers of Industries of Ecuador, which indicates that the repeal of article 326(12) of the Constitution respecting compulsory arbitration would make it necessary to undertake a comprehensive revision of the chapter on collective disputes of the Labour Code, including issues such as the representative nature of the organizations which may call a strike. In light of the above, the Committee encourages the Government to initiate discussions with the social partners on the possibility of amending article 326(12) of the Constitution and the related legal provisions, as indicated above. The Committee also trusts that the principles referred to above will be taken into consideration in the context of the discussion of the Bill to amend the legislation governing the public sector.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, observing on the one hand that section 498 of the Labour Code provides that only the enterprise committee or, in its absence, half plus one of the workers in the enterprise, may call a strike, and also noting the Government’s indication that no provision in the Labour Code restricts or prohibits the right to strike of federations and confederations, the Committee requested the Government to indicate the rules applicable to strikes called by federations or confederations. In this regard, the Committee takes due note of the Government’s indication that: (i) section 450 of the Labour Code provides that federations and confederations are governed by the precepts regulating trade unions; and (ii) national confederations and provincial federations of workers have called several general strikes in recent years, which demonstrates the legality of such action. The Committee requests the Government to provide information on these general strikes, including whether their initiation or conduct was subject to any dissuasive action by the State.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the joint observations of the National Federation of Education Workers (UNE) and Public Services International (PSI), received on 1 September 2016, and the joint observations of the UNE and Education International (EI), received on 7 September 2016, with both trade union communications referring to matters examined in the present observation and the corresponding direct request. The Committee also notes that, in the context of their observations on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), received on 1 September 2016, the above organizations report police violence in the context of a peaceful demonstration accompanying the adoption on 3 December 2015 of amendments to the national Constitution, and the arbitrary detention of 21 persons, including the President of the Confederation of Workers of Ecuador, Edgar Sarango. The Committee expresses concern at these allegations and requests the Government to send its comments in this regard.

The Committee also notes the observations of the National Federation of Chambers of Industries of Ecuador, received on 2 September 2016, which also refer to matters examined in the present observation and in the corresponding direct request. The Committee finally notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature.

The Committee notes the Government’s comments in reply to the joint observations of 2015 of the UNE, Public Services International (PSI) and the United Front of Workers (FUT). With reference to the complaint concerning the active role of the Government in the establishment of the National Confederation of Public Sector Workers, the United Central Workers’ Organization and the Primary Teachers’ Network, the Committee notes the Government’s indication that: (i) the State promotes the creation of all types of associations or organizations without favouritism or interference; (ii) it plays an active role in simplifying the procedures for the establishment and registration of labour organizations; and (iii) the Primary Teachers’ Network is not a labour or trade union organization, but an educational organization. With regard to the situation of Mery Zamora, former President of the UNE who, according to these trade unions, was subject to criminal persecution by the public authorities, the Committee notes the Government’s indication that Mery Zamora was found innocent by the judicial system.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Impossibility of establishing more than one trade union in state bodies. In its previous comments, the Committee examined article 326(9) of the Constitution, which provides that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization. Having taken due note of the Government’s indication that other provisions of the Constitution (article 326(7)) and of laws do recognize the right of workers in the public sector, without distinction whatsoever, to establish organizations of their own choosing, the Committee requested the Government to take measures to amend article 326(9) of the Constitution so as to bring it into conformity with Article 2 of the Convention and with the provisions of Ecuadorian legislation referred to above. The Committee notes the Government’s indication in its latest report that the objective of article 326(9) of the Constitution is to prevent the disorganized proliferation of labour organizations. The Committee also notes that the PSI and the UNE provide with their observations the text of the Bill to amend the legislation governing the public sector, which is currently under examination by the National Assembly. The Committee notes that the Bill provides that, for the purposes of the exercise of their right to organize, in light of article 326(9) of the Constitution, public servants shall be represented by a “committee of public servants” (CPS), the members of which shall represent at least half plus one of all public servants in the same institution. The Committee observes that: (i) under the terms of the Bill, the CPS would have all the characteristics of a workers’ organization, with members, statutes and an executive board; (ii) the CPS would have all the attributes to promote and defend the collective interests of public servants recognized in the Bill (especially the right to social dialogue and the right to strike); (iii) the Bill does not envisage other forms of organization through which public servants could collectively defend their interests and exercise the collective rights referred to above; and (iv) in view of the need to include half plus one of all public servants, there could only be one CPS for each institution. The Committee recalls that, under the terms of Article 2 of the Convention, workers, whether in the public or private sector, must be able to establish the organizations of their own choosing. In light of the above, the monopoly of organization imposed by the law, whether directly or indirectly, is contrary to the provisions of the Convention, and trade union pluralism should be possible at all times. The Committee therefore urges the Government to take the necessary measures immediately to ensure that, in accordance with Article 2 of the Convention, both the Constitution and the legislation fully respect the right of public servants to establish the organizations of their own choosing for the collective defence of their interests. The Committee requests the Government to provide information on this subject.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations.

Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015). In its previous direct request, the Committee observed that Executive Decree No. 16 envisaged broad grounds for administrative dissolution, such as engaging in party political activities (reserved for political parties and movements registered with the National Electoral Board), activities interfering in public policies which prejudice the internal or external security of the State, and activities jeopardizing public peace (section 26(7) of the Decree). The Committee requested the Government to provide information on the applicability of these grounds for administrative dissolution to occupational organizations of public servants and to workers’ trade unions governed by the Labour Code. The Committee notes the Government’s indication that: (i) Executive Decree No. 16, as amended by Decree No. 739, only applies to social and citizens’ organizations self-defined as such, and is not therefore applicable to labour organizations; (ii) the labour legislation in Ecuador establishes a complex procedure for the dissolution of labour organizations, which may be requested by their members, but not at all by the State, or by employers in the private sector; and (iii) associations (of public servants) such as the UNE, which were not registered by the Ministry of Labour, but by the Ministry of Education, are not labour organizations governed by the Labour Code and are therefore covered by the provisions of Executive Decrees Nos 16 and 739.

In this regard, in light of Article 10 of the Convention, the Committee recalls that, in so far as occupational associations of public servants have the objective of furthering the economic and social interests of their members, irrespective of their classification or legal regulation under the terms of the national law, they are fully protected by the guarantees of the Convention. The Committee recalls in particular that the defence of 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 prohibits dissolution or suspension by administrative authority. In light of the above, the Committee urges the Government to adopt the necessary reforms so that occupational associations of public servants are not subject to grounds for dissolution which prevent them from exercising in full their mandate of defending the interests of their members, and are not subject to administrative dissolution or suspension. The Committee requests the Government to provide information on this subject.

Administrative dissolution of the UNE. In its previous comments, the Committee requested the Government to register the new executive committee of the UNE. In this regard, the Committee notes the observations of the UNE, EI and PSI alleging that: (i) in view of the continued refusal of the authorities to register the executive committee of the UNE, the teachers of the country took the initiative of convening an extraordinary congress on 14 May 2016 to start from zero the process of registering their executive committee; (ii) in July 2016, the Sub-secretariat for Education of the Metropolitan District of Quito, under the terms of Executive Decree No. 16, initiated the process of the administrative dissolution of the UNE; (iii) the Sub-secretariat for Education of the Metropolitan District of Quito declared the dissolution of the UNE in a resolution of 18 August 2016; and (iv) with a view to initiating the process of liquidating the assets of the UNE, the National Police of Ecuador raided and took over the trade union headquarters of the UNE in the cities of Guayaquil and Quito on 29 August 2016. The Committee also notes the Government’s indication that: (i) the UNE had been requested since 23 December 2013 to comply with a list of six requirements set out both in the regulations that are in force and in its own statutes; and (ii) the convocation of an extraordinary congress by a number of members of the social organization, who did not have the power to do so, to elect the members of its executive committee is in violation of the provisions of Executive Decree No. 16, as well as clause 18 of the statutes of the organization. Finally, the Committee notes that, in a joint communication of 27 September 2016, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the United Nations Special Rapporteur on the situation of human rights defenders condemned the use of the national legislation in Ecuador to dissolve the UNE. In light of the above, the Committee is bound to recall once again that the election of the officers of workers’ organizations, which include professional associations of public servants, is an internal matter in which the administrative authorities should not interfere and that the administrative dissolution of workers’ organizations constitutes a serious violation of the Convention. The Committee expresses its deep concern at the administrative dissolution of the UNE and urges the Government to take all necessary measures on an urgent basis to revoke that decision so that the UNE can immediately exercise its activities once again. The Committee requests the Government to report on any progress in this regard.

Article 3. Right of workers’ organizations and of associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee urged the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code so as not to impose penal sanctions on workers engaged in a peaceful strike. In this regard, the Committee notes the Government’s indication that: (i) the prohibition set out in this section refers to the illegal and unlawful interruption of a public service outside the procedures governing the exercise of the right to strike; (ii) the objective of the penal provision is to safeguard the right of citizens to have access to public services without any limitation; and (iii) there is a process to be followed to call a strike in the public sector, and the labour legislation determines a system of minimum services to be provided. Recalling that no penal sanctions should be imposed for the peaceful participation in a strike and that such sanctions should only be permissible where violence is committed against persons or property, or other serious violations of penal law, the Committee once again urges the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code as indicated above and to report any developments in this regard.

Application of the Convention in the private sector

Article 2. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee recalls that, since the legislative reform of 1985, which increased the minimum number of members required from 15 to 30, it has been requesting the Government to reduce the minimum number of workers required by law to establish workers’ associations or enterprise committees. The Committee notes the Government’s indication that the minimum number of 30 members is intended to ensure the representative nature of the enterprise committee and to allow the conclusion of collective contracts which strengthen the union and its members. In this regard, the Committee emphasizes that the requirement of a reasonable level of representativity to conclude collective agreements, which is not contrary to the ILO Conventions on freedom of association and collective bargaining, must not be confused with the conditions required for the establishment of trade union organizations. Emphasizing that, under the terms of Article 2 of the Convention, workers shall have the right to establish organizations of their own choosing in full freedom, the Committee recalls that it has generally considered that the requirement of a minimum number of 30 members to establish enterprise unions in countries in which the economy is characterized by the prevalence of small enterprises hinders the freedom to establish trade unions. The Committee therefore once again requests the Government, in consultation with the social partners, to take the necessary measures to amend sections 443, 452 and 459 of the Labour Code to reduce the minimum number of members required to establish workers’ associations and enterprise committees.

Article 3. Compulsory time limits for the convening of trade union elections. In its previous comments, the Committee noted the allegation by various trade unions that section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, is in violation of the independence of trade unions by providing that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiration of their mandate, as set out in the statutes of their organizations. The Committee requested the Government to provide its comments on this subject, as well as information on the application of this provision in practice. The Committee notes the Government’s indication that the purpose of this provision is to promote the normal democratic functioning of trade unions. While observing that the promotion through the legislation of the democratic functioning of trade unions is not in itself contrary to the Convention, the Committee recalls that, by virtue of Article 3 of the Convention, trade union elections are an internal matter for the organizations which should primarily be governed by their statutes. The Committee therefore requests the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013 to ensure that, in compliance with democratic rules, the consequences of any delay in convening trade union elections are set out in the by-laws of the organizations themselves.

Election as officers of enterprise committees of workers who are not trade union members. In its previous comment, the Committee noted that new section 459(3) of the Labour Code provides that enterprise committees “shall be composed of any worker, whether or not a union member, who is registered on the lists for such election”. The Committee considered that the imposition by law that workers who are not union members may stand for election as officers of the enterprise committee is contrary to the trade union autonomy recognized by Article 3 of the Convention, and it requested the Government to take the necessary measures to amend this provision of the Labour Code. In this regard, the Committee notes the Government’s indication that enterprise committees represent all workers, whether or not they are members of a union. Observing that, under the terms of the Labour Code, the enterprise committee is one of the forms which may be assumed by trade union organizations within the enterprise, and that the officers of the enterprise committee are elected solely by workers in the enterprise who are unionized, the Committee once again emphasizes that it would be acceptable for workers who are not union members to stand for office only if the specific by-laws of the enterprise committee envisage this possibility. The Committee therefore once again requests the Government to take the necessary measures to amend section 459(3) of the Labour Code to bring it into compliance with the principle of trade union autonomy, and to provide information on any progress achieved in this regard.

The Committee observes with deep concern that, despite its reiterated comments, restrictions on freedom of association that are contrary to the guarantees of the Convention are being extended, especially in the public service. The Committee urges the Government to take fully into consideration the content of the present observation both with regard to the legislation that is in force and its application, and in relation to the draft legislation that is currently under examination, and particularly the Bill to reform the administrative legislation. In this regard, the Committee recalls that the Government may have recourse to ILO technical assistance.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 3 of the Convention. Registration of trade unions. Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013). The Committee notes that the joint observations of the National Federation of Education Workers (UNE), Public Services International-Ecuador (PSI-E) and the United Front of Workers (FUT), received on 23 August 2015, refer to Executive Decree No. 16 and allege that: (i) Executive Decree No. 16, despite the indications by the Government in previous reports, does indeed apply to trade unions, as illustrated by the refusal to register the new executive committee of the UNE on the grounds of that Decree, and the inclusion of many trade unions in the register established under the terms of the Decree; and (ii) the Decree is in violation of the guarantees of the Convention by establishing various reasons for the administrative dissolution of organizations, such as interference in public policies or the failure to provide information periodically. The Committee notes the Government’s indication in its report that: (i) Executive Decree No. 16 does not apply to trade unions, but to corporations, foundations and organizations engaged in social management or control; (ii) trade unions are governed by their statutes and by the provisions of the Labour Code; and (iii) the Ministry of Education refused the registration of the new executive committee of the UNE on the basis of Executive Decree No. 16 on the grounds that the UNE was not registered as a trade union.

With regard to the scope of application of Executive Decree No. 16, the Committee notes that: (i) the Government indicates that the Decree’s inapplicability to trade unions only refers to workers’ organizations governed by the Labour Code, and not to associations of public employees, which remain outside the scope of the Labour Code; and (ii) the provisions of the Decree were applied to the UNE, which groups together public employees. The Committee notes from this information that occupational associations of public employees, which are fully protected by the guarantees of the Convention, are governed by Executive Decree No. 16. The Committee therefore requests the Government to provide clarification or other comments on the allegation that many trade unions of workers governed by the Labour Code are included in the register established by Executive Decree No. 16.

With reference to the content of Executive Decree No. 16, and the denunciations made by the trade unions, the Committee notes the indication by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in Case No. ECU 1/2013, that certain provisions of Executive Decree No. 16 are of particular concern, especially those setting out broad justifications for the dissolution of associations, such as engaging in party political activities (reserved for political parties and movements registered with the National Electoral Board), activities interfering in public policies which prejudice the internal or external security of the State and activities jeopardizing public peace (section 26(7) of the Decree). Recalling that the defence of their members’ interests requires workers’ organizations to be able to express their views on the Government’s economic and social policy, and that Article 4 of the Convention prohibits the dissolution or suspension of organizations by administrative authority, the Committee requests the Government to provide information on the applicability of the grounds for administrative dissolution set out in Executive Decree No. 16: (i) to occupational organizations of public employees; and (ii) to workers’ trade unions governed by the Labour Code.

Right to re-election of officers of employers’ and workers’ organizations. With reference to article 326(8) of the Constitution, which provides that the State shall promote the democratic, participatory and transparent operation of employers’ and workers’ organizations, including through alternation of their officers, the Committee notes the Government’s indication that: (i) neither the Constitution nor the Labour Code establish limits on the re-election of the officers of workers’ organizations; and (ii) practice shows that there are no limits in this respect. While recalling that any legislative provision, irrespective of its form, which restricts or prohibits re-election to trade union office is incompatible with the Convention, and noting the Government’s statements that article 326(8) of the Constitution of Ecuador does not imply any restriction in this regard, the Committee requests the Government to continue providing information on the functioning in practice of trade union elections.

Compulsory time limits when convening trade union elections. The Committee notes that the UNE, PSI-E and FUT denounce the fact, as they did in their 2014 observations, that section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, is in violation of the independence of trade unions by providing that trade union executive committees shall lose their powers and competences if they do not convene elections within 90 days of the expiry of the mandate as set out in the statutes of their organizations. The trade unions add that, under certain conditions, in accordance with their rules, trade unions may be compelled to extend the functions of their executive committees. Emphasizing that trade union elections are an internal matter for the organizations which should be regulated primarily by their rules, the Committee requests the Government to provide its comments on the observations made by the trade unions referred to above and to provide information on the application of section 10(c) of Ministerial Decision No. 0130.

Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 24(h) of the Basic Act on the Public Service (LOSEP) and sections 24 and 31(3) of the Basic Act on Public Enterprises (LOEP), which prohibit stoppages in a wide range of public services. In this regard, the Committee noted that article 326(15) of the Constitution, which provides that the law shall set limits to ensure the functioning of minimum services, appears compatible with the establishment of minimum services in the event of a strike. The Committee notes the Government’s indication that: (i) sections 514 and 515 of the Labour Code establish procedures for determining minimum services in the event of a strike in institutions and enterprises which provide services of social or public interest; and (ii) in the absence of agreement between the employer and the trade union, the arrangements for the provision of minimum services shall be established by the Ministry of Labour. In this regard, the Committee once again recalls that, in the event of disagreement concerning the determination of minimum services, the decision should be taken by a joint or independent body which enjoys the confidence of the parties, and not by the government authorities. The Committee therefore once again requests the Government to take the necessary measures to amend section 515 of the Labour Code as indicated above and to report on any developments in this respect. The Committee also notes that, although the Labour Code applies to workers in the private sector, as well as workers in the public sector, it does not cover public servants. The Committee therefore requests the Government to indicate the rules applicable to the determination of minimum services in the event of strikes called by associations of public servants. More generally, the Committee once again requests the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants.

Compulsory arbitration. In its previous comments, the Committee requested the Government to take the necessary measures to repeal or amend article 326(12) of the Constitution, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration, so as to ensure that compulsory arbitration is possible only in cases in which strikes may be limited, or even prohibited. The Committee notes the Government’s indication that, under the terms of sections 470, 474, 475, 479 and 481 of the Labour Code, arbitration by the Conciliation and Arbitration Court only occurs after the dispute has been submitted to mediation and conciliation. The Committee emphasizes that the failure of mediation and conciliation processes does not in itself justify the imposition of compulsory arbitration. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where the strike may be restricted or prohibited, that is in disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee therefore once again requests the Government to take the necessary measures to amend the legislative provisions so as to ensure that compulsory arbitration is possible only in the instances indicated above, and to provide information on any developments in this respect.

Articles 3 and 6. Right of federations and confederations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 498 of the Labour Code, which implicitly denies the right to strike of federations and confederations, by providing that only the enterprise committee or, in its absence, half plus one of the workers in the enterprise, may call a strike. In this regard, the Committee notes the Government’s indication that: (i) section 450 of the Labour Code provides that federations and confederations are governed by the precepts relating to trade unions; (ii) no provision in the Labour Code restricts or prohibits the right to strike of workers’ federations and confederations; and (iii) examples, such as the participation of the National Federation of Medical Personnel in the general demonstration of 19 November 2014, demonstrate that the right to strike of federations and confederations is respected in practice. While taking due note of these indications, the Committee requests the Government to indicate the rules applicable to strikes called by federations or confederations, including any ways in which these rules differ from the rules applicable to strikes called by trade unions.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the joint observations of the National Federation of Education Workers (UNE), Public Services International-Ecuador (PSI-E) and the United Front of Workers (FUT), received on 23 August 2015, and the observations of the International Trade Union Confederation (ITUC), received on 1 September 2015, with both of the trade union communications referring to issues examined in the present observation and the corresponding direct request. The Committee also notes that, in their observations, these Ecuadorian trade unions denounce the active role played by the Government in the establishment of the National Confederation of Public Sector Workers, the United Central Workers’ Organization and the Primary Teachers’ Network. The Committee requests the Government to provide its comments in this regard. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

The Committee notes the Government’s comments in reply to the 2014 observations of the PSI-E, the Standing Inter-Union Committee and the UNE concerning the prosecution of Mery Zamora (former President of the UNE), Carlos Figueroa (former Executive Secretary of the Ecuadorian Medical Federation) and Fernando Villavicencio (former trade union leader in the petroleum sector). The Government indicates that: (i) in its ruling of 27 May 2014, the National Court of Justice acquitted Mery Zamora, who had previously been found guilty of the destruction, deterioration, misuse, interruption or paralysis of public services; (ii) Carlos Figueroa was found guilty on 13 March 2014 of the crime of malicious defamation against the President of the Republic, and he was released from the Social Rehabilitation Centre of Quito on 17 January 2015; and (iii) Fernando Villavicencio was convicted of the same crime on 16 April 2013, and on 23 March 2015, following several appeals, the national court set aside the penalty imposed upon him. The Committee notes that, in their 2015 observations, the UNE, PSI-E and FUT, as well as the ITUC, denounce: (i) the violation by the State of the precautionary measures ordered by the Inter-American Commission on Human Rights for Carlos Figueroa; and (ii) the persistence of the persecution of Mery Zamora. The trade unions indicate that an appeal has been lodged against the acquittal of Mery Zamora by the Office of the Prosecutor General through an extraordinary protection appeal to the Constitutional Court, despite the fact that such legal action is intended to protect the fundamental rights of individuals, and not the interests of the State. The Committee expresses concern at the cases described above and recalls that the peaceful exercise of trade union activities, including the right to express opinions, should not give rise to charges, convictions, or extraordinary legal action by the Government against trade union leaders and members. The Committee requests the Government to take these principles fully into account in the future and to continue providing information on the situation of Mery Zamora.

The Committee notes the Government’s comments in reply to the observations of the PSI-E, the Standing Inter-Union Committee and the UNE of 2014 concerning the refusal to register the new executive committee of the UNE. The Government indicates that the Ministry of Education refused the registration of the executive committee on the grounds that it had not attached the documents required by section 21(a) of the Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013) and because it had not complied with various provisions of the statutes of UNE. While noting that matters of a general nature raised by Executive Decree No. 16 are examined in the direct request supplementing the present observation, the Committee recalls that, under Article 3 of the Convention, the election of trade union leaders is an internal matter for the organizations in which the administrative authorities should not interfere. In this regard, any issues concerning the lawful nature of trade union elections should first give rise to the application of the procedures set out in the organization’s statutes and, if they cannot be resolved internally, should be submitted to the courts. Based on the above, the Committee requests the Government to register the new executive committee of the UNE and to provide information on developments in this regard.

The Committee also notes the report of the ILO technical mission which, at the invitation of the Government, visited the country from 26 to 30 January 2015 as a follow-up to the discussion in the Committee on the Application of Standards of the International Labour Conference in June 2014 concerning the application by Ecuador of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee welcomes the fact that the Government agreed to broaden the mandate of the mission to the legislative issues raised by the Committee concerning the present Convention.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Impossibility of establishing more than one trade union in state bodies. In its previous comments, the Committee requested the Government to take measures to amend article 326(9) of the Constitution, which provides that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization. The Committee notes the Government’s indication that: (i) both article 326(7) of the Constitution, which gives broad recognition to the right to freedom of association, and the provisions of the Labour Code, which are applicable to public sector workers, recognize the right of workers in the public sector, without distinction whatsoever, to establish organizations of their own choosing; and (ii) 1,532 trade unions of public sector workers are registered in the country. Taking due note of the Government’s indications, the Committee requests the Government to take the necessary measures to amend article 326(9) of the Constitution so as to bring it into conformity with Article 2 of the Convention and with the provisions of Ecuadorian legislation referred to above.

Excessive number of workers (30) required for the establishment of associations, enterprise committees, or assemblies for the organization of enterprise committees. In its 2014 report, the Government indicated that, during the current revision of the labour legislation, the Committee’s comments would be taken into account concerning the minimum number of workers required for the establishment of trade unions. Nevertheless, the Committee notes that the Basic Act on labour justice and the recognition of household work (hereinafter, the Labour Justice Act), adopted in April 2015, has not modified the minimum number of 30 workers required by the legislation. The Committee also notes the Government’s indication in its latest report that: (i) the Convention does not establish a specific minimum number of members, leaving their determination to the national authorities; and (ii) the minimum number of 30 members does not constitute an obstacle to the establishment of trade unions. The Committee recalls in this respect that: (i) under the terms of Article 2 of the Convention, workers shall have the right to establish organizations of their own choosing; (ii) as indicated in its 2012 General Survey on the fundamental Conventions, paragraph 89, while the legislation in countries which have ratified the Convention may regulate the exercise of this right by establishing a minimum number of members, the numbers should be fixed in a reasonable manner so that the establishment of organizations freely, as guaranteed by the Convention, is not hindered; and (iii) the Committee has generally considered that the requirement of a minimum number of 30 members to establish enterprise unions in countries in which the economy is characterized by the prevalence of small enterprises, hinders the freedom to establish trade unions. Noting that the country has a very high proportion of small enterprises and that the national trade union structure is based on enterprise unions, the Committee, since the legislative reform of 1985 which increased the minimum number of members from 15 to 30, has been requesting the Government to reduce the minimum number required by the legislation. The Committee therefore once again requests the Government to take the necessary measures to amend sections 443, 452 and 459 of the Labour Code, which stipulate various requirements and criteria for the establishment of associations, and to report any developments in this regard.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. In its previous comments, the Committee requested the Government to take measures to amend section 459(4) of the Labour Code, which establishes the requirement of Ecuadorian nationality to hold office in enterprise committees. In this regard, the Committee notes with satisfaction that section 49 of the Labour Justice Act has removed from the Labour Code the nationality requirement referred to above.

Election of workers who are not union members as officers of enterprise committees. The Committee notes that the ITUC, UNE, PSI-E and FUT denounce the fact that new section 459(3) of the Labour Code, adopted as part of the Labour Justice Act, provides that enterprise committees “shall be composed of any worker, whether or not a union member, who is registered on the lists for such election”, and thereby violates the independence of trade unions and allows interference by both the State and the employer in elections. The Committee observes that, under the terms of the Labour Code, the enterprise committee is one of the forms that may be taken by trade unions within the enterprise, with the officers of the enterprise committee being elected by all the workers in the enterprise who are unionized. Recalling that, under the terms of Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom, the Committee considers that: (i) the imposition by law that workers who are not union members may stand for election as officers of the enterprise committee is contrary to the trade union autonomy recognized by this provision of the Convention; and (ii) it would be acceptable for workers who are not union members to stand for office only if the specific rules of the enterprise committee envisage this possibility. The Committee therefore requests the Government to take the necessary measures to amend section 459(3) of the Labour Code to bring it into compliance with the principle of trade union autonomy, and to provide information on any progress made in this regard.

Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee requested the Government to take the necessary steps to amend Decree No. 105, of 7 June 1967, and section 346 of the Basic Comprehensive Penal Code, so as not to impose penal sanctions on workers carrying out a peaceful strike. In this regard, the Committee notes that: (i) the Government indicates that Decree No. 105 has not been part of Ecuadorian legislation since 1971; (ii) the Government’s report does not refer to section 346 of the Basic Comprehensive Penal Code; and (iii) during the ILO technical mission in January 2015, the officials of the Ministry of Labour indicated that section 346 of the Basic Comprehensive Penal Code was not intended to prohibit the right to strike, and discussed the possibility of that provision explicitly indicating that the specified acts do not include the peaceful exercise of the right to strike. Recalling that no penal sanctions should be imposed with respect to carrying out a peaceful strike but such sanctions should only be permissible where violence against persons or property, or other serious infringements of penal law have been committed, the Committee once again urges the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code as indicated above and to report any developments in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 2 of the Convention. Application of the Convention to public servants and their organizations. In reply to the Committee’s request for information in its previous comment, the Government indicates that the Basic Act concerning Public Enterprises (LOEP) does not prohibit the right to organize of public servants who are freely appointed and removed or of career public servants in public enterprises but merely excludes them from the right to engage in collective bargaining. The Committee notes this information, which is also considered in the context of the examination of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Moreover, the Committee notes the Government’s indication that 324 trade union organizations have been registered in 2014 in the public sector.

Registration of trade union organizations. The Committee notes the Government’s comments in reply to the 2013 observations from Public Services International Ecuador (ISPE) concerning the regulations for the functioning of the unified information system relating to social and civic organizations (Executive Degree No. 16 of 20 June 2013). The Government indicates that Executive Decree No. 16 seeks to improve procedures for establishing labour organizations, including creating a register, and that this does not undermine their autonomy. The Committee notes that the joint observations from the ISPE, the Standing Inter-Union Committee and the National Federation of Education Workers (UNE), received on 4 September 2014, denounce the failure to recognize, in accordance with Executive Decree No. 16, the new UNE leadership. The Committee requests the Government to send its comments on this matter.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and formulate their programmes. For several years the Committee has been making comments on certain provisions of national law with a view to ensuring their conformity with the Convention:

• -With regard to article 326(15) of the Constitution, section 24(h) of the Basic Act concerning the Public Service (LOSEP), and sections 24 and 31(3) of the LOEP, which prohibit the stoppage of a wide range of public services, the Committee notes the Government’s indication that it is not feasible to amend these provisions, since their purpose is to protect the welfare of the community and that any stoppage, including of a partial nature with the provision of minimum services, would violate the right to decent living standards. The Committee recalls that it considers that, except in the case of the armed forces and the police, whose members may be excluded from the scope of application of the Convention, the right to strike may be restricted or prohibited only: (1) for public servants exercising authority in the name of the State; (2) with regard to essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and (3) in the event of an acute national crisis. While noting that article 326(15) of the Constitution, in providing that the law shall set limits to ensure the functioning of minimum services, appears compatible with the establishment of minimum services in the event of a strike, the Committee again requests the Government to take the necessary measures to clarify or amend the abovementioned provisions accordingly, and to provide information on any developments in this respect.
• -With regard to article 326(12) of the Constitution, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration, the Committee notes the Government’s indication that this involves an alternative method of dispute settlement in which dialogue between the parties plays the key role, preventing any escalation of the problem or the need for recourse to a judicial body. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee requests the Government to take the necessary measures to repeal or amend this provision so as to ensure that compulsory arbitration is possible only in the instances cited above, and to provide information on any developments in this respect.
• -The Committee notes the lack of any comment from the Government on section 515, final paragraph, of the Labour Code, concerning the determination of minimum services by the Minister of Labour should the parties fail to reach agreement in the event of a strike. The Committee therefore requests the Government once again to amend this provision to ensure that, in the event of the parties’ failure to reach agreement, minimum services are determined by a joint or independent body which has the confidence of the parties, and to provide information on any developments in this respect.
• – The Committee also requests the Government to clarify to what extent the legislation in force recognizes the right to strike for public servants.

[The Government is asked to reply in detail to the present comments in 2015.]

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations from the International Organisation of Employers (IOE) received on 1 September 2014. The Committee also notes the joint observations from Public Services International (PSI)-Ecuador, the Standing Inter-Union Committee and the National Federation of Education Workers (UNE), received on 4 September 2014, which state in particular that: (i) sections 345 and 346 of the new Penal Code impose severe penalties for strike action in the public sector; (ii) the draft Labour Relations Code and the draft amendments to the Constitution submitted on 26 July 2014 do not comply with the Convention; and (iii) Carlos Figueroa, former executive secretary of the Ecuadorian Medical Federation, was detained on 22 July 2014 despite the precautionary measures handed down by the Inter-American Commission on Human Rights. Lastly, the Committee notes the observations from the International Trade Union Confederation (ITUC), received on 1 September 2014, referring to issues examined by the Committee and reporting the detention of Fernando Villavicencio, a former trade union official in the petroleum industry, in addition to Carlos Figueroa. The Committee requests the Government to send its comments on the aforementioned observations.

The Committee notes the Government’s reply to the ITUC’s observations made in 2013 and those of the PSI from the same year. The Government indicates in particular that the Criminal Chamber of the National Court of Justice overturned the eight-year prison sentence for Ms Mery Zamora, former president of the National Federation of Education Workers, for instigating the stoppage of a public service.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. Impossibility of establishing more than one trade union organization in the state administration. With regard to article 326.9 of the Constitution, which provides that, for all labour relations matters in state institutions, the labour sector shall be represented by a single organization, the Committee notes with concern the Government’s indication that this provision seeks to prevent the formation of several organizations that pursue the same ends and to ensure the existence of a single organization that is strong and solid. The Committee recalls that the right of workers to establish organizations of their own choosing, as laid down in Article 2 of the Convention, implies that trade union pluralism should be possible in all cases, including in the public service, and hence the situation of having a sole trade union imposed by the law is not in conformity with the provisions of the Convention. Emphasizing the importance of the possibility for workers to be able to change or establish new trade unions, for reasons of independence, effectiveness and also ideological affinity, the Committee requests the Government to amend article 326.9 of the Constitution in such a way as to comply with the provisions of Article 2 of the Convention, and to provide information on any developments in this respect.

Articles 2 and 3 of the Convention. Legislative matters that have been pending for several years. For several years the Committee has been making comments on various provisions of national law with a view to ensuring their conformity with Articles 2 and 3 of the Convention:

• -Excessive number of workers (30) required for the establishment of associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee notes the Government’s indication that the Committee’s comments will be taken into account as part of the current reform of labour legislation. The Committee therefore trusts that sections 443, 452 and 459 of the Labour Code will be amended accordingly, and requests the Government to provide information on any developments in this respect.
• -Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee notes the Government’s indication that sections 443 and 466 of the Labour Code do not contain the requirement of Ecuadorian nationality to become an officer of a union executive committee. However, the Committee observes that section 459(4) of the Labour Code does impose the requirement of Ecuadorian nationality to become an officer of an enterprise committee. The Committee therefore requests the Government to amend section 459(4) of the Labour Code accordingly, and to provide information on any developments in this respect.
• -Right to re-election for officers of workers’ and employers’ organizations. The Committee notes the Government’s indication that: (i) Ecuadorian law clearly recognizes that the election of trade union officers is a matter for the union concerned; (ii) the alternation in leadership established in article 326(8) of the Constitution of the Republic is necessary for promoting democracy and eliminating discrimination and the perpetuation of power. The Committee recalls that it considers any legislative provision, regardless of its form, that restricts or prohibits re-election to trade union office to be incompatible with the Convention. The Committee therefore requests the Government once again to take the necessary steps to amend article 326(8) of the Constitution accordingly, and to provide information on any developments in this respect.
• -Right of federations and confederations to organize their activities and formulate their programmes. The Committee notes the lack of comments from the Government regarding the need to amend section 498 of the Labour Code, which implicitly denies the right to strike for federations and confederations. The Committee recalls that denial of the right to strike for federations and confederations creates difficulties in the application of Articles 3 and 6 of the Convention regarding the rights of federations and confederations. The Committee therefore requests the Government once again to take the necessary steps to amend section 498 of the Labour Code, and to provide information on any developments in this respect.

Article 3 of the Convention. Prison sentences for stoppage or obstruction of public services. The Committee notes that section 346 of the new Penal Code adopted on 3 February 2014 provides for imprisonment of one to three years for any person who obstructs, hinders or stops the normal provision of a public service or violently resists the restoration thereof or occupies a public edifice or installation by force. The Committee notes with concern that the abovementioned section includes organization of peaceful strikes or participation therein as a criminal offence. The Committee recalls that no criminal penalties should be imposed on workers for participation in a peaceful strike and hence on no account should prison sentences or fines be imposed. Such penalties are only possible if acts of violence against people or property or other serious offences covered by the penal legislation are committed during the strike (for example, failure to assist a person in danger or inflicting deliberate injury or damage on persons or property). The Committee also recalls that for many years it has been calling for the revision of Decree No. 105 of 7 June 1967 establishing the penalty of a prison sentence for any person participating in unlawful work stoppages or strikes. The Committee therefore requests the Government to take the necessary steps to amend the new Penal Code and Decree No. 105 of 7 June 1967 accordingly, and to provide information on any developments in this respect.

While noting that, on 15 November 2014, the President of the Republic announced a proposal for revision of various aspects of the Labour Code, the Committee hopes that the Government, in consultation with the most representative workers’ and employers’ organizations, will adopt the necessary measures to reform the legal and regulatory provisions referred to above, and requests the Government to provide information on any developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2015.]

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Application of the Convention to public servants and their organizations. The Committee notes that, in the context of Case No. 2926, the Committee on Freedom of Association “expects that enjoyment of all the rights upheld in Convention No. 87 will be fully secured for organizations of public servants” and draws the legislative aspects of the case to the attention of the Committee of Experts (see 370th Report, Case No. 2926, para. 385). The Committee recalls that in its previous comments it requested the Government: (i) in relation to the Organic Act on public enterprises, to indicate whether public servants who are freely appointed and removed and career public servants in public enterprises enjoy the rights laid down in the Convention; (ii) to provide information on the number of associations established for the promotion and defence of the interests of public servants, the sectors covered and the approximate number of members; and (iii) to indicate whether article 326(9) of the Constitution of the Republic prevents the establishment of more than one organization in each public body or state institution, or merely gives preferential rights for collective bargaining to the most representative organization (when an organization becomes the most representative, it may exercise such preferential rights in the place of the organization that no longer has the majority). Under these conditions, the Committee once again requests the Government to provide the requested information.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes with regret that the Government’s report has not been received. The Committee hopes that a report will be sent for examination at its next session and that it will contain full particulars on all the matters raised.

Comments from workers’ organizations. The Committee notes the Government’s replies to the comments of the Ecuadorian Medical Federation of 2012 and those of the International Trade Union Confederation (ITUC) of 2011. In particular, the Committee notes the Government’s indication that it promotes and supports the establishment of trade union and branch organizations, as demonstrated by the registration of numerous organizations in recent years.

The Committee notes the 2013 comments of the ITUC, the Trade Union Confederation of Ecuador and the attached comments by Public Services International Ecuador, the National Confederation of Educational Workers, the General Confederation of Workers of Ecuador, the Federation of Workers of the Enterprise “Petroleros del Ecuador”, the Trade Union Confederation of the Public Sector in Ecuador, the Confederation of Health Professionals, the National Federation of Public Servants and various local trade union organizations referring to matters already raised by the Committee, and alleging in addition that: (i) the Basic Act on Higher Education (LOES) of 12 October 2010 and the Basic Act on Intercultural Education (LOEI) of 31 March 2011 do not recognize the right of public employees in the education sector to establish trade unions and violate their right to organize their activities and formulate their programmes in full freedom; (ii) Decree No. 16 of 20 June 2013 and Ministerial Decision No. 0130 of 21 August 2013 endanger the independence of trade unions; (iii) the absence of consultation of the social partners on the draft reform of the Labour Code, which contains provisions which are not in conformity with the Convention; (iv) the conviction of Ms Mery Zamora, former President of the National Confederation of Education Workers to eight years of imprisonment for sabotage and terrorism and of Carlos Figueroa, leader of the Ecuadorian Medical Federation, to six months of imprisonment for slander, as well as various cases of the criminal persecution of trade union leaders in reprisal for their trade union activities; and (v) the obstacles raised by the Ministry of Industrial Relations to the registration of trade unions. The Committee requests the Government to provide its observations on all of these allegations.

Finally, the Committee regrets that the Government has not provided its observations on the comments made by the ITUC in 2009 concerning the repression by the police and the army of a demonstration called by the trade union confederations in 2006 resulting in serious injuries and detentions, and the alleged threats and acts of intimidation against leaders of the Workers’ Confederation of Ecuador and the United Confederation of Workers of Ecuador.

Legislative matters. The Committee recalls that for several years it has been commenting on various provisions of the national legislation which are not in conformity with Articles 2 and 3 of the Convention. The Committee also notes the adoption of the LOEI, which raises certain discrepancies with the Convention. Specifically, the Committee requests the Government to take the necessary measures to amend:

• -sections 450, 459 and 466 of the Labour Code to revise the requirement of 30 workers for the establishment of associations, enterprise committees or assemblies to organize enterprise committees;
• -section 466(4) of the Labour Code to revise the requirement to be of Ecuadorian nationality to be able to become a trade union officer;
• -article 326(8) of the Constitution of the Republic so as to allow the right to re-election of officials of workers’ and employers’ organizations; and
• -article 326(12) and (15) of the Constitution, section 24(h) of the Organic Act on the Civil Service (LOSEP), sections 24 and 31(3) of the Organic Act on Public Enterprises (LOEP), section 132(p) and the first general provision of the LOEI, sections 505 and 522 of the Labour Code and Decree No. 105 of 7 June 1967, relating to the right of trade unions and associations of public servants to organize their activities and formulate their programmes.

The Committee hopes that the Government will take into account all of the comments that the Committee has been making for several years and that it will adopt, in consultation with the most representative organizations of workers and employers, the necessary measures to reform the legislative provisions referred to above, including those contained in the Labour Code, which is currently undergoing a process of revision. The Committee requests the Government to provide information in its next report on any progress in this respect and reminds it that the technical assistance of the Office is at its disposal.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 2 of the Convention. Right of workers to form and join organizations. In its previous comments, the Committee took note of two bills under debate in the National Assembly, namely: the Basic Public Service Bill and the Basic Bill on Public Enterprises. The Committee notes that they were enacted into law on 24 July 2009 and 6 October 2010, respectively. The Committee observes that section 18 of the Basic Act on Public Enterprises refers only to associations of workers. It further observes that the Act makes no reference to associations of public servants who are freely appointed and removed or associations of career public servants. The Committee requests the Government to indicate whether public servants who are freely appointed and removed and career public servants of public enterprises enjoy the rights laid down in the Convention.

Furthermore, the Committee again asks the Government to provide information on the number of associations established for the promotion and defence of the interests of public servants, the sectors covered and the approximate number of members.

Lastly, in its previous comments, the Committee referred to article 326(9) of the Constitution which provides that: “for all purposes of the employment relationship in state institutions, the labour sector shall be represented by a single organization”. The Committee points out that to impose a trade union monopoly in state institutions or bodies is not compatible with the requirements of the Convention. The Committee again requests the Government to indicate whether this provision prevents the establishment of more than one organization in each public body or institution, or merely gives preferential rights for collective bargaining to the most representative organization, and to indicate whether once an organization becomes the most representative, it may exercise such preferential rights in the place of the organization that no longer has the majority.

Article 3. Right to strike. The Committee notes that section 24 of the Basic Act on Public Enterprises allows for the right to strike, with the restriction laid down in article 326(15) of the Constitution of the Republic (on which the Committee commented, observing that essential services were defined too broadly) and that section 31(3) prohibits employees in public enterprises from “suspending on any grounds the provision of public services or the exploitation of natural resources carried on by public enterprises, except in the event of force majeure or unforeseen circumstances”. The Committee also observes that section 24(h) of the Basic Public Service Act prohibits public servants from suspending, on any grounds, the following public services, inter alia: education, justice and social security, electric energy, public transportation and postal services. The Committee points out that the right to strike is not an unqualified right and that restrictions or even prohibitions may be imposed in exceptional circumstances. Apart from the armed forces and the police, whose members may be excluded from the scope of the Convention, the right to strike may be restricted or prohibited in: (1) the public service in the case of public servants exercising authority in the name of the State; (2) essential services in the strict sense of the term, namely services the interruption of which would endanger the life or personal safety of the whole or part of the population; and (3) situations of acute national or local crisis. In these circumstances, the Committee requests the Government to take the necessary measures, bearing in mind the abovementioned principle, to amend section 31(3) of the Basic Act on Public Enterprises and section 24(h) of the Basic Public Service Act, and to report all progress in this regard.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC) on the application of the Convention. It requests the Government to send its observations thereon, and on the serious allegations made by the ITUC in 2009 concerning repression by the police and the army of a demonstration organized by the trade union federations in 2006, that led to serious injuries and arrests, and on the alleged threats and acts of intimidation against leaders of the Workers Confederation of Ecuador (CTE) and the United Confederation of Workers of Ecuador (CEDOCUT).

The Committee notes the Government’s reply to the International Organisation of Employers’ (IOE) comments of 2009. It also notes the comments of 1 September 2011 from the National Federation of Chambers of Industry of Ecuador, concerning the position of the ILO Employers’ group regarding the right to strike.

The Committee also notes the report of the technical cooperation mission carried out in Quito from 15 to 18 February 2011 during which there was an examination of the matters raised by the National Federation of the Enterprise Petróleos del Ecuador (FETRAPEC) on 24 August 2009, and the arguments submitted by FETRAPEC to the Committee on Freedom of Association in Case No. 2684. The Committee notes the information gathered during the abovementioned mission, and in particular the information provided by the Government to the effect that a process has begun to reform the Labour Code and the Government has undertaken to consult the ILO in the course of that process.

New Constitution

In its previous observation, the Committee noted that some provisions of the new Constitution raise problems of compatibility with the Convention. Specifically:

• -article 326(8), which provides that “the State shall encourage the creation of organizations of men and women workers and of men and women employers, in accordance with the law; and shall promote democracy, participation and transparency in their running and alternation in their leadership”. The Committee notes the Government’s statement that: (1) interference in the internal affairs of organizations, whether of employers or of workers, cannot be inferred from the Constitution, since such organizations have the right to elect their representatives in full freedom and the right to organize their own administration; and (2) changeover of leadership will secure for organizations a future marked by participation, transparency and democracy. In this respect, the Committee once again points out that according to Article 3 of the Convention, decisions as to the alternation of members of executive committees should lie solely with the organizations of workers and employers and their members. While noting the information sent by the Government, the Committee requests it to take the necessary measures to repeal or amend this provision so as to allow a right to re-election for officials of workers’ and employers’ organizations;
• -article 326(12), which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee again requests the Government to take the necessary measures to repeal or amend this provision so as to ensure that compulsory arbitration is possible only in the instances cited above;
• -article 326(15), which prohibits suspension of public services in education, social security, the production and processing of hydrocarbons and the transportation and distribution of fuel, and provides that the law shall set limits to ensure the running of such services. The Committee recalls that the right to strike may be restricted or prohibited only: (1) for public servants exercising authority in the name of the State; (2) in essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (3) in the event of an acute national or local crisis. The Committee further recalls that in order to avoid damage that is irreversible or out of all proportion to the occupational interests of the parties to the dispute, and in order to avoid damages to third parties, i.e. the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to take the necessary measures to amend article 326(15) to ensure that the right to strike may be exercised in these services, with the possibility of minimum services being established.

Pending legislative issues

The Committee recalls that for many years it has been requesting the Government to take measures to repeal or amend the following provisions of the law:

Article 2 of the Convention. Right of workers to establish organizations without prior authorization.

• -sections 450, 459 and 466 of the Labour Code establishing a minimum requirement of 30 workers for the creation of associations, works committees or assemblies to organize works committees;

Article 3.Right of organizations to elect their representatives in full freedom.

• -section 466(4) of the Labour Code requiring Ecuadorian nationality to become a trade union officer.

Right of organizations to organize their activities and formulate their programmes.

• -section 26(g) of the Codification of the Framework Act on the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration, which prohibits work stoppages on any grounds in public services which may not be deemed essential in the strict sense of the term (education, social security, hydrocarbon production, fuel processing, transportation and distribution, and public transport) and provides for dismissal for failure to observe the prohibition;
• -section 522, second paragraph, of the Labour Code regarding the determination of minimum services by the Minister of Labour in case of disagreement between the parties in the event of a strike;
• -section 505 of the Labour Code which implicitly denies federations and confederations the right to strike;
• -Decree No. 105 of 7 June 1967 establishing the imposition of prison sentences for participation in unlawful work stoppages and strikes.

The Committee hopes that in the process now under way to reform the Labour Code – for which technical assistance was provided by the Office – the Government will take account of all the comments the Committee has been making for years and requests the Government in its next report to provide information on all developments in this regard. The Committee also once again requests to the Government to take all necessary measures to amend section 26(g) of the Codification of the Framework Act of the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration, and Decree No. 105 of 7 June 1967.

The Committee is raising other points regarding the public sector legislation recently adopted in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes that following a referendum held on 28 September 2008, a new Constitution was adopted which entered into force on 20 October 2008.

Article 2 of the Convention. The Committee observes that article 326, paragraph 9, of the new Constitution provides that “for all purposes of the employment relationship in state institutions, the labour sector shall be represented by a single organization”. The Committee recalls that to impose a trade union monopoly in state institutions or bodies is not compatible with the Convention. It again asks the Government to state whether this provision prevents the establishment of more than one organization in each public body or institution, or merely gives preferential rights for collective bargaining to the most representative organization, and to indicate whether once an organization becomes the most representative it may exercise such preferential rights in the place of the organization that no longer has the majority.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the Government’s reply to the comments of 28 August 2007 by the International Trade Union Confederation (ITUC) concerning the removal by the police of workers taking part in a strike in the banana sector on 11 February 2006. According to the Government, the police removed the workers in order to prevent damage to the facilities and avoid a confrontation between the workers and the owners of the plantation. Furthermore, the Committee notes with regret that the Government has not sent its observations on the other comments of the ITUC concerning repression by the police and the army of a demonstration called by the trade union federations in 2006, causing serious injuries and arrests, or on the alleged threats and acts of intimidation against leaders of the CTE and CEDOCUT. The Committee reminds the Government in this connection that the arrest or detention, even for short periods, of trade union leaders and members engaged in legitimate trade union activities constitutes a grave violation of the principle of freedom of association, and emphasizes that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately as the most appropriate means of fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Lastly, the Committee notes the comments of 24 August 2009 by the National Federation of Workers of the Enterprise “Petróleos del Ecuador” (FETRAPEC) and those of 26 August 2009 by the ITUC referring to legislative issues highlighted by the Committee, and in particular certain provisions of the new Constitution of Ecuador (especially article 326, paragraph 16, which provides that state institutions and private law entities in which public resources have a majority share that carry on representational, management, administrative or professional activities, shall be subject to the laws regulating the public administration and that all others shall be covered by the Labour Code). The Committee requests the Government to send its observations on this matter.

The Committee also notes the comments of 30 August 2009 by the International Organisation of Employers (IOE) in which the latter asserts that the new Constitution of Ecuador includes certain amendments that adversely affect relations between workers and employers and that although representatives from various sectors played an active part in the preparation of the new constitutional texts, there was no real or effective participation or any balanced input to the framing of constitutional provisions from the main partners in the labour relationship, and hence no objective analysis and diagnosis of the issues to be treated in the Constitution. The IOE objects in particular to article 326, paragraph 8, which establishes that the State shall promote the democratic, participatory and transparent operation of workers’ and employers’ organizations with alternation of leadership, on the grounds that this provision constitutes a form of state intervention in the internal activities of workers’ and employers’ organizations, in breach of the Convention.

New Constitution of Ecuador

The Committee notes that on 28 September 2008 a new Constitution was adopted, which entered into force on 20 October 2008. The Committee observes that some of its provisions raise problems of compatibility with the Convention:

–           article 326, paragraph 8, which provides that “the State shall encourage the creation of organizations of men and women workers and of men and women employers, in accordance with the law; and shall promote democracy, participation and transparency in their running with alternation in their leadership”. In this connection, the Committee emphasizes that according to Article 3 of the Convention, decisions as to alternation in executive offices rest solely with the organizations of workers and employers and their members. In these circumstances, the Committee asks the Government to take the necessary steps to repeal or amend this provision so as to allow the re-election of officers of workers’ and employers’ organizations.

–           article 326, paragraph 12, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration. The Committee reminds the Government that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense, i.e. services the interruption of which would endanger the life or personal safety of the whole or part of the population. The Committee requests the Government to take all necessary steps to repeal or amend this provision to ensure that compulsory arbitration is possible only in the instances cited above.

–           article 326, paragraph 15, which prohibits suspension of public services in education, social security, production and transformation of hydrocarbons, transport and distribution of fuel, and provides that the law will provide limits to ensure the said services’ operation. In this respect, the Committee recalls that the right to strike can only be restrained or prohibited: (1) for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of term (i.e. services the interruption of which could endanger the life or personal safety of the whole or part of the population). The Committee also recalls that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to take appropriate measures in order to modify this provision so as to ensure that the right to strike can be exercised in the abovementioned services, with the possibility to provide a system of minimum services which is to be determined with the participation of workers’ and employers’ organizations.

Pending legislative issues

The Committee points out that for many years it has been asking the Government to take steps to repeal or amend:

–           sections 450, 459 and 466 of the Labour Code establishing a minimum requirement of 30 workers for the creation of associations, works committees or assemblies to organize works committees;

–           section 26(g) of the Codification of the Framework Act on the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration which prohibits work stoppages on any grounds in public services which may not be deemed essential in the strict sense (education, social security, hydrocarbon production, fuel processing, transport and distribution, and public transport) and provides for dismissal for failure to observe the prohibition;

–           section 522, second paragraph, of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties in the event of a strike;

–           section 505 of the Labour Code which implicitly denies federations and confederations the right to strike;

–           Decree No. 105 of 7 June 1967 establishing the imposition of prison sentences for participation in unlawful work stoppages and strikes; and

–           section 466(4) of the Labour Code requiring Ecuadorian nationality for service as a trade union officer.

The Committee notes that in its report the Government states that a detailed study will be conducted in the National Assembly for the drafting of a bill to amend the Labour Code and that the Committee’s observations will be submitted to the National Assembly. The Committee hopes that it will be able to note progress in the legislation in the near future and asks the Government in its next report to provide information on all developments in this regard. It reminds the Government that it may seek technical assistance from the Office in the context of its reform of the Labour Code.

The Committee has received information about two proposals for acts being debated in the National Assembly: the Basic Public Service Act and the Basic Act on Public Enterprises. The Committee hopes that the new texts will establish in full the rights laid down in the Convention: the right to organize of public officials and employees and the right to strike of public servants other than those exercising authority in the name of the State.

Furthermore, the Committee once again asks the Government to provide information on the number of associations that have been set up for the promotion and defence of the interests of public servants, the sectors covered and the approximate number of members.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and observes that it does not contain specific information on the legislative measures that are under examination. The Committee also notes the observations made by the International Trade Union Confederation (ITUC) referring to issues that are under examination by the Committee, particularly in relation to the exercise of the right to strike and the repression by the police and the army of a demonstration organized by the trade union confederations and a strike in the banana sector on 11 February 2006. The Committee requests the Government to provide its comments in this respect and on the observations made by the International Confederation of Free Trade Unions (ICFTU, now ITUC), which it noted in its previous observation.

Pending matters

The Committee recalls that for many years its observations have been referring to the following matters:

–           the need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 459 and 466 of the Labour Code);

–           the need to amend section 60(g) of the Civil Service and Administrative Careers Act prohibiting the establishment of unions so as to ensure that public servants have the right to establish organizations to further and defend their occupational and economic interests. The Committee notes with interest the abolition of this prohibition by virtue of the adoption of the codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration. The Committee requests the Government to provide information on the number of associations which have been established to further and defend the interests of public servants, the sectors covered and the approximate number of members under the terms of the recently adopted codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration, which amends section 60(g) of the Civil Service and Administrative Careers Act;

–           the need to amend article 35(10) of the Political Constitution, which prohibits the stoppage on any grounds of public services which may not be considered essential in the strict sense of the term (education, social security, the refining, transport and distribution of fuel and public transport). The Committee also notes that section 26(9) of the codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration, which was adopted recently, lays down the same prohibition;

–           the need to amend section 522(2) of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties in the event of a strike;

–           the implicit denial of the right to strike by federations and confederations (section 505 of the Labour Code);

–           the imposition of prison sentences for participation in illegal work stoppages or illegal strikes (Decree No. 105 of 7 June 1967); and

–           the requirement to be of Ecuadorian nationality to serve as a trade union officer (section 466.4 of the Labour Code).

Noting that it has been commenting on these provisions for many years, the Committee hopes that the Government will take the necessary measures in the near future to bring the legislation into full conformity with the Convention. The Committee requests the Government to keep it informed of any development in this respect.

Draft constitutional reform

The Committee notes the Government’s indication that the Minister of Labour and Employment announced that draft provisions would be presented to the President for inclusion in the new Political Constitution of the Republic in the section on “Labour” for analysis and possible submission for consideration by the Constituent National Assembly. The Government is facilitating the passage of the draft text, section 32(11) of which maintains the prohibition set out in the current Constitution which has been criticized by the Committee relating to the exercise of the right to strike in non-essential public services. The Committee reiterates its previous comments. The Committee requests the Government to keep it informed of developments relating to the draft text of the new Political Constitution and expresses the hope that it will be in full conformity with the provisions of the Convention.

Draft reform of the Labour Code

The Committee was informed previously of the existence of a draft text to reform the Labour Code which had been formulated with ILO assistance. The Committee understands that the examination of this text is suspended in view of the constitutional reform process. In these circumstances, the Committee requests the Government to keep it informed of developments relating to this draft legislation.

Finally, the Committee reminds the Government that, in the context of the current legislative and constitutional reforms, it may benefit from ILO technical assistance with a view to ensuring the conformity of the reforms with the Convention.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which essentially refer to issues of a legislative nature that are already under examination. The ICFTU also indicates that workers in service enterprises and with short-term contracts do not benefit from the guarantees set out in the Convention, and refers to difficulties in exercising the right to organize in the flower-growing sector and to the arrest of trade union leaders in the banana sector. In this respect, the Committee requests the Government to provide its observations in relation to the ICFTU’s comments.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 6 June 2005, on the application of the Convention, which principally refer to matters already raised by the Committee. The Committee requests that the Government provide its observations in its next report on the ICFTU’s comments that allege that temporary workers are not covered by the guarantees set out in the Convention.

The Committee recalls that for many years its observations have been referring to the following matters:

–      the need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code);

–      the need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations to further and defend their occupational and economic interests and to have recourse to strike action;

–      the need to amend section 522(2) of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties;

–      the implicit denial of the right to strike to federations and confederations (section 505 of the Labour Code);

–      the imposition of prison sentences for participation in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967); and

–      the requirement of Ecuadorian nationality to serve as a trade union officer (section 466(4) of the Labour Code).

The Committee regrets that in relation to all these comments the Government confines itself in its report to making statements of a general nature, indicating that the provisions of section 450 of the Labour Code on the minimum number of workers required to establish an association do not impair the right to organize in the country, and that the requirements set out by the law for the establishment of trade unions are inevitable to prevent a series of conflicts leading to challenges and applications for protection from the Constitutional Court. Under these conditions, the Committee requests the Government to take measures to amend the legislative provisions in question, which in some cases relate to serious violations of the Convention, such as the prohibition for public servants to enjoy the right to establish organizations to further and defend their occupational and economic interests, and to provide information in its next report on any measures adopted in this respect. The Committee reminds the Government that if it is planning to reform the legislation, it can have recourse to the technical assistance of the Office to ensure that it is in full conformity with the provisions of the Convention.

With regard to workers in the public education sector, the Committee makes its comments in an observation concerning Convention No. 98.

Finally, with reference to the ICFTU’s comments on the application of the Convention, which were submitted on 19 July 2004, the Committee regrets that the Government has not provided its observations on the allegation that striking workers were replaced in the Petroecuador company or on the violent repression by the police and the arrest of 70 persons during a march by teachers on 10 December 2003. In this respect, the Committee recalls that the hiring of workers to break a strike in a sector which cannot be considered an essential service in the strict sense of the term is an infringement of the principles of freedom of association. Furthermore, the Committee emphasizes that the authorities should resort to calling in the police in a strike situation only where the situation is of a serious nature or if there is a genuine threat to public order.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 July 2004 on the application of the Convention and the Government’s reply thereto.

As most of the matters raised by the ICFTU were examined last year in the context of the regular reporting cycle, the Committee will examine these comments, the Government’s reply and its observations on the other outstanding issues raised by the Committee (see 2003 observation, 74th Session) when it receives the Government’s report due for examination in 2005.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report.

The Committee recalls that for several years its comments have addressed the following points.

1. Need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes with regret that there has been no tripartite discussion about reducing the number of workers required to establish a trade union or a works committee. While recalling that this minimum number would be permissible for industry trade unions, the Committee again requests the Government to take the necessary steps to reduce the minimum number of workers required to form associations or works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces and workers in the shipping sector to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), which comprises civilian workers of the armed forces. The Committee notes that the Government once again states that the civilian workers of the armed forces may join organizations and associations (in its previous observation, the Committee noted the Government’s statement that they enjoy the right of association under article 35 of the Political Constitution), and that no application to register by a TRANSNAVE union having been found, the Government has requested the trade union to submit an application for registration or a copy of its earlier application.

3. Need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations for furthering and defending their occupational and economic interests and to have recourse to strike action. The Committee notes that, according to the Government, there has as yet been no progress regarding the reform of the abovementioned legislation. The Committee recalls that, according to Article 2 of the Convention, all workers, with the sole possible exception of the armed forces and the police, should have the right to organize irrespective of any possible restrictions on the right to strike for certain categories of workers (public servants exercising authority in the name of the State and workers in essential services, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee requests the Government to take steps to secure the amendment of the abovementioned provisions of the Civil Service and Administrative Careers Act and of the Political Constitution, and to provide information in its next report of the measures taken to that end.

4. Need to amend section 522(2) of the Labour Code under which the Ministry of Labour determines the minimum services in the event of a strike in case of disagreement between the parties. The Committee notes that a proposal to reform the legislation has been drafted and that the Committee will be informed as soon as there are concrete results. The Committee recalls that, in the absence of an agreement between the parties, responsibility for determining the minimum services should lie with an independent body which has the confidence of both parties, and not with the Ministry of Labour. The Committee expresses the hope that the abovementioned reform will be consistent with the principles of the Convention, and requests the Government to provide information in its next report on any developments in the reform.

5. Implicit denial of the right to strike to federations and confederations (section 505 of the Labour Code). The Committee notes that the Government has not sent its observations on this matter. The Committee recalls that under Article 6 of the Convention federations and confederations must have the right to organize their administration and activities and formulate their programmes. The Committee requests the Government to amend section 505 of the Labour Code so as to ensure the abovementioned right.

6. Prison sentences for participation in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes that, according to the Government, as part of the reform of the legislation, Decree No. 105 is to be amended or repealed. The Committee hopes that this decree will be amended in the reform of the legislation, and requests the Government to provide information in its next report on any developments in this regard.

7. The requirement of Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, consideration has been given to including this matter too in the reform of the legislation. The Committee hopes that, in the course of the abovementioned reform, it will be borne in mind that in conformity with Article 3 of the Convention "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). The Committee requests the Government to provide information in its next report on any developments in this aspect of the reform.

Lastly, in view of the Government’s statement that there is a proposal for a reform of the legislation, the Committee suggests that the Government may wish to seek technical assistance from the Office to ensure that the reform takes full account of the provisions of the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

The Committee recalls that in its previous observations it referred to the following points.

1. Need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes the Government’s statement that there is no desire among the social partners to amend these provisions. The Committee regrets to note that it has been referring to this legal requirement for many years and reiterates that, even though this minimum number would be permissible for industry trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee once again expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE). In this respect, the Committee notes the information provided by the Government that there is no explicit prohibition in the Act respecting personnel in the armed forces of the right to organize of civilian personnel in the armed forces and that, as a consequence, article 35 of the Political Constitution, which refers to freedom of association, is fully applicable. The Committee also notes the Government’s statement that, while there is no opposition to the registration of the TRANSNAVE trade union, the workers themselves have no intention of being unionized, for which reason the trade union is not being registered. The Committee nevertheless notes that, during the examination of Case No. 1664, the Government indicated that the workers in TRANSNAVE were governed by the Act respecting personnel in the armed forces, in accordance with which they could not establish a trade union (see the 286th Report of the Committee on Freedom of Association, paragraph 283). In these conditions, the Committee requests the Government to clarify whether civilian personnel in the armed forces and workers in the maritime transport sector benefit from the right to organize and to keep it informed of the measures adopted by the workers of TRANSNAVE with a view to the registration of the trade union.

3. The need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations for furthering and defending their occupational and economic interests and to have recourse to strike action. The Committee notes the Government’s statement that it is assessing the possibility of amending the above provisions with a view to recognizing the right of association of public servants and the consequences of such an amendment not only for the workers involved, but also for the rest of society, particularly with regard to the right to strike. The Committee recalls that, in accordance with Article 2 of the Convention, all workers, with the sole possible exception of the armed forces and the police, should have the right to organize, irrespective of any possible restrictions on the right to strike for certain categories of workers. Indeed, while the Committee has reiterated on many occasions that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, this right cannot be considered as an absolute right and may be governed by provisions laying down conditions for, or restrictions on, the exercise of this right (see General Survey of 1994, paragraphs 147 and 151). In this respect, the Committee considers that the right to strike may be restricted in the case of public servants exercising authority in the name of the State. Moreover, with regard to services, the Committee considers that the right to strike can also be restricted in essential services, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraphs 158 and 159), irrespective of whether the entity providing such services is public or private. In the case of services which are non-essential, but which are considered to be of public utility, such as education and transport where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met, a minimum service may be established (see General Survey, op. cit, paragraphs 161 and 162). The Committee requests the Government to take measures to amend the above provisions so as to bring them into conformity with Articles 2 and 3 of the Convention.

4. The need to amend section 522(2) of the Labour Code respecting the determination of minimum services in the event of a strike by the Minister in the case of disagreement between the parties. The Committee notes the information provided by the Government that the first subsection of the above section provides that the parties shall agree on the procedures for the provision of minimum services that shall be maintained for the duration of the strike. Nevertheless, the Committee notes that the same section, in subsection 2, provides that in the absence of agreement, arrangements for the provision of minimum services shall be established by the Ministry of Labour. The Committee considers that in this case the determination of the above minimum services should be the responsibility of an independent body in which both parties have confidence, and not the Ministry of Labour. The Committee requests the Government to take the necessary measures to amend section 522(2) of the Labour Code to bring it into conformity with the provisions of the Convention.

5. The implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code) and the imposition of penalties of imprisonment on persons who participate in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes the information provided by the Government that there have been no amendments to the legislation in this respect. The Committee recalls that, in accordance with Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to take measures to amend the above provisions so as to bring them into conformity with the provisions of the Convention.

6. The requirement to have Ecuadorian nationality to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, there are no plans to amend this provision. The Committee recalls once again that, by virtue of Article 3 of the Convention, "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see General Survey, op. cit., paragraph 118) so as to ensure that workers’ and employers’ organizations have the right to elect their representatives in full freedom. The Committee therefore once again requests the Government to take measures to amend section 466(4) of the Labour Code.

7. The need to ensure the right to appeal to the judicial authorities against the dissolution by administrative authority of a works committee, as envisaged under section 472 of the Labour Code. The Committee notes the information provided by the Government that, by virtue of section 447 of the Labour Code, "Workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts" and that any dissolution by administrative authority is accordingly suspended until the judicial authority has ruled thereon.

The Committee observes once again that, despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the requirements of the Convention on the points referred to above. The Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above and requests the Government to provide information in this respect in its next report. The Committee once again recalls that ILO assistance is available to the Government for this purpose.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes that in its previous comments it referred to article 35(9) of the Political Constitution, which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations in state institutions, the workers shall be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the provisions of the Convention. The Committee therefore once again requests the Government to indicate whether this provision prevents the establishment of more than one organization in each public body or institution, or merely gives preferential rights for collective bargaining to the most representative organization, and whether once an organization becomes the most representative it can exercise such preferential rights in the place of the organization that no longer has the majority.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

The Committee recalls that in its previous observations it raised the following points.

1. Right of workers and employers, without distinction whatsoever, to establish organizations of their own choosing (Article 2).

(a)  The Committee has referred to the need to amend section 59(f) of the Civil Service and Administrative Careers Act to ensure that civil servants, in addition to being able to "associate and appoint their leaders," are able to establish organizations to promote and defend their occupational and economic interests. Noting that the Government continues to refer to article 35(9) of the Political Constitution, the Committee recalls that, when it comes to the question of the right of public servants, this article refers to the laws governing the public administration. The Committee therefore requests the Government to provide information in its next report on any legislative progress made in amending the Civil Service and Administrative Careers Act so that public servants can establish organizations within the meaning of Article 10 of the Convention.

(b)  The Committee also referred to the need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions. In this respect, the Committee regrets that the Government does not refer to this matter in its report. The Committee considers that, in view of the fact that Article 9 of the Convention only envisages exceptions for the police and the armed forces, workers should be considered as civilians in case of doubt (see General Survey on freedom of association and collective bargaining, 1994, paragraph 55). The Committee therefore asks the Government to take measures to ensure that civilian employees in the armed forces and the maritime sector are guaranteed the right to organize in conformity with Article 20 of the Convention and to provide information in this respect in its next report.

The Committee also addressed the issue of the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), and notes in this respect the Government’s indication in its report that it would not oppose the registration of this trade union. In these conditions, the Committee requests that the Government take the necessary measures for the registration of the trade union as soon as possible. It asks the Government to provide information in this respect in its next report.

(c)  The Committee also recalls that for a number of years it has been referring to the need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). It reiterates that, although this minimum number of workers would be permissible for industrial trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

(d)  With regard to the administrative refusal to register a trade union, professional association (section 452 of the Labour Code) or works committee (section 466(2)), the Committee regrets to note that the Government has not made any comment and requests it to ensure that, in the event of refusal of registration, the trade union, association or works committee whose application was denied is able to appeal to the competent judicial authorities for the examination of the question on the merits and the reasons for which the measure was taken.

2. Right of workers’ organizations to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes (Article 3).

(a)  The Committee recalls that in its previous comments it referred to the need to amend section 60(g) of the Civil Service and Administrative Careers Act, which prohibits civil servants from calling strikes. It also requested the Government to amend article 45(10) of the Political Constitution, which prohibits the interruption of public services for any reason. The Committee noted in this respect that this prohibition should be confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that, according to the Government’s latest report, since public servants exercising authority are not those who provide public services which may be essential for the life and integrity of the population, it would not be logical to limit the prohibition of strikes to these persons. Furthermore, according to the Government, the education and transport sectors must be considered as basic essential services. The Committee nevertheless considers that the abovementioned provisions incorporate an overly broad view of those public servants who may be excluded from the exercise of the right to strike and of "essential services" in which strikes may be prohibited. The Committee recalls in particular that the education and transport sectors do not constitute essential services in the strict sense of the term. It recalls however that the authorities may establish a system of minimum service in services which are not essential, such as public utilities, instead of prohibiting all strike action. In the light of these considerations, the Committee hopes that the above provisions will be brought into conformity with Article 3 of the Convention in the near future.

(b)  In its previous comments, the Committee also referred to the need to amend section 522(2) of the Labour Code concerning the determination of minimum services in the event of a strike by the Minister in the case of a disagreement between the parties. Noting that the Government does not refer to this matter, the Committee once again requests it to take the necessary measures to ensure that workers’ organizations are able to participate, if they so wish, in defining this service, along with employers and the public authorities (see 1994 General Survey, paragraph 161). The Committee expresses the firm hope that the Government will make this amendment to the legislation in the near future and will provide information in this respect in its next report.

(c)  The Committee notes the Government’s indication that appropriate procedures have been set in motion to repeal Decree No. 105 of 7 June 1967, with regard to unlawful work stoppages and strikes, and the prison sentences which can be imposed on those instigating or taking part in such acts. The Committee hopes that the Government will complete this process in the near future and requests that the Government provide information on this in its next report.

(d)  With regard to the implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code), the Committee notes that the Government makes no comment on this matter. It recalls that workers’ organizations have the right to organize their activities and to formulate their programmes (Article 3) and that, under Article 6 of the Convention, provisions of this Article apply to federations and confederations of workers’ and employers’ organizations. It therefore requests the Government to take measures to amend its legislation so as to ensure that federations and confederations may exercise industrial action without penalty.

(e)  With regard to the requirement that a person must have Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code), the Committee notes the Government’s indication that it is possible to recognize a person who is not of Ecuadorian nationality as a trade union officer since, in any case, the Convention and the Political Constitution (article 13, under which "foreign nationals shall enjoy the same rights as Ecuadorians, with the limitations established in the Constitution and in the law") prevail over the law, because they have supremacy and higher legal authority than other legislative provisions, such as the Labour Code. Nevertheless, the Committee understands that section 466(4) of the Labour Code sets forth a specific limitation on the right of persons who are not nationals of Ecuador to hold trade union office (the members of the executive board have to be nationals of Ecuador), whereas Article 3 of the Convention provides generally that workers’ organizations shall have the right to elect their representatives in full freedom. Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence, in the host country (see 1994 General Survey, paragraph 118), the Committee asks the Government to take measures to amend section 466(4) of the Labour Code.

3. Workers’ organizations shall not be liable to be dissolved or suspended by administrative authority (Article 4).

(a)  In its previous comments, the Committee referred to the need to ensure the right to appeal to the judicial authorities against the dissolution by the administrative authority of a works committee, which may arise under section 472 of the Labour Code. The Committee notes that under the terms of section 447 of the Labour Code, "workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts". The Committee recalls in this respect that the right of appeal must be allowed to an independent and impartial judicial body which is competent to examine the case on its merits. Moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey paragraph 185). The Committee therefore requests that the Government indicate in its next report whether labour court judges are competent to examine the merits of the case and whether an administrative decision does not take effect until a final decision is handed down.

Finally, noting that despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the Convention on the points referred to above, the Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above. It asks the Government to provide it with information in this respect in its next report. It once again recalls that ILO technical assistance is available to the Government in this regard.

The Committee is also addressing a request on another matter directly to the Government.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which reads as follows:

The Committee recalls that in its previous observation, it noted that two Bills had been drafted in the course of a technical assistance mission of the Office, which took place in September 1997 at the request of the Government. The contents of these Bills and the Government’s comments on certain points are as follows:

-  the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests (on this point, the Government indicates in its report that article 35(9) of the Constitution recognizes the right to organize of civil servants). The Committee observes, however, that article 35(9) provides that "labour relations in the institutions included in subsections (1) (legislative, executive and judicial organs and bodies), (2) (electoral bodies), (3) (organs of control and regulation), and (4) (entities that are part of an autonomous regime) of article 118, and with respect to legal persons created to exercise public authority, along with civil servants, are covered by the laws governing public administration";

-  the repeal of section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, and the adoption of a provision according to which strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or for those who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population);

-  an addition to section 452 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-  the amendment of section 454(11) to provide that higher-level organizations enjoy the right to express their opinions on the Government’s economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-  adding to the end of section 466(2) a provision to the effect that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-  the deletion from section 466 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official. The Government in its report indicates that this section of the Labour Code would become inoperable were a non-Ecuadorean worker to request to be recognized as a trade union leader, pleading the application of Convention No. 87 or requesting a competent judge to declare the provision of the Labour Code to be unconstitutional. The Committee observes, however, that article 13 of the Constitution states that "foreigners are entitled to the same rights as Ecuadoreans, unless otherwise provided in the Constitution and the law". The Committee considers that the Constitution, as presently worded, does not clearly guarantee to Ecuadoreans the right to hold trade union leadership posts;

-  the amendment of section 472 on the dissolution by administrative measures of a works committee in order to grant to the workers’ or employers’ organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee. The Government indicates that for the last 15 years, no such dissolution has taken place in practice;

-  the amendment of section 522(2) concerning minimum services in the event of a strike providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers’ and employers’ organizations in the sector; and

-  the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-  the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 450, 466 and 459 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced to facilitate the establishment of enterprise unions and not to hinder their establishment, particularly in view of the very large proportion of small enterprises in the country;

-  the deprival of the guarantee of security to workers who take part in a solidarity strike (section 516 of the Labour Code). The Government insists on the fact that it is trying to prevent the abusive use of solidarity strikes that would result in long periods of immobility;

-  the implicit refusal of the right to strike for federations and confederations (section 505 of the Labour Code).

-  the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice, and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association). The Government indicates that the relationship between the different constitutional provisions would require the revision of the trade union’s request for registration.

The Committee observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention. The Committee requests the Government to take the measures necessary without delay to bring the legislation and the practice into conformity with the Convention. The Committee reminds the Government that the Office is available to provide technical assistance, and expresses the firm hope that the Government will supply information in its next report concerning all progress achieved with respect to the questions raised.

The Committee notes that certain new provisions of the 1998 Constitution give rise to, or could give rise to, problems with respect to the application of the Convention:

-  Article 35(9) which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations for those in State institutions, the workers will be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the requirements of the Convention. In this regard, the Committee requests the Government to indicate if article 35(9) of the Constitution implies that only one organization or many can be established per public body or institution; if many can be established, whether preferential rights are granted to the most representative organization, and in the case of an organization becoming the most representative, whether it can exercise these rights in the place of the organization that no longer has the majority.

-  Article 35(10), first paragraph, which recognizes and guarantees the right to strike and the right to lockout to workers and employers pursuant to the legislation and second paragraph, which states that "it is prohibited to interrupt, for whatever reason, public services in particular those concerning health, education, justice and social security; electrical energy, drinking-water and sewers; transformation, transport and distribution of fuel, public transport and telecommunications. The law will provide appropriate sanctions". The Government states that the first part of paragraph (10) recognizes and guarantees the right to strike and that the concept of "interruption" under the Constitution is interpreted as an action which results in the interruption or cessation, far removed from what the law generally stipulates. In this context, the Committee is of the opinion that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous General Surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the interruption of strikes in the public sector is too extensive and that in particular education and general transport services (of persons and products) cannot be considered to be essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to take measures to amend the constitutional provisions noted in conformity with freedom of association principles and to specify the measures envisaged or taken to grant compensatory guarantees to workers deprived of the right to strike.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the discussion that took place during the 1998 Conference Committee.

The Committee recalls that in its previous observation, it noted that two Bills had been drafted in the course of a technical assistance mission of the Office, which took place in September 1997 at the request of the Government. The contents of these Bills and the Government's comments on certain points are as follows:

-- the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests (on this point, the Government indicates in its report that article 35(9) of the Constitution recognizes the right to organize of civil servants). The Committee observes, however, that article 35(9) provides that "labour relations in the institutions included in subsections (1) (legislative, executive and judicial organs and bodies), (2) (electoral bodies), (3) (organs of control and regulation), and (4) (entities that are part of an autonomous regime) of article 118, and with respect to legal persons created to exercise public authority, along with civil servants, are covered by the laws governing public administration";

-- the repeal of section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, and the adoption of a provision according to which strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or for those who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population);

-- an addition to section 452 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-- the amendment of section 454(11) to provide that higher-level organizations enjoy the right to express their opinions on the Government's economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-- adding to the end of section 466(2) a provision to the effect that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-- the deletion from section 466 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official. The Government in its report indicates that this section of the Labour Code would become inoperable were a non-Ecuadorean worker to request to be recognized as a trade union leader, pleading the application of Convention No. 87 or requesting a competent judge to declare the provision of the Labour Code to be unconstitutional. The Committee observes, however, that article 13 of the Constitution states that "foreigners are entitled to the same rights as Ecuadoreans, unless otherwise provided in the Constitution and the law". The Committee considers that the Constitution, as presently worded, does not clearly guarantee to Ecuadoreans the right to hold trade union leadership posts;

-- the amendment of section 472 on the dissolution by administrative measures of a works committee in order to grant to the workers' or employers' organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee. The Government indicates that for the last 15 years, no such dissolution has taken place in practice;

-- the amendment of section 522(2) concerning minimum services in the event of a strike providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers' and employers' organizations in the sector; and

-- the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-- the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 450, 466 and 459 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced to facilitate the establishment of enterprise unions and not to hinder their establishment, particularly in view of the very large proportion of small enterprises in the country;

-- the deprival of the guarantee of security to workers who take part in a solidarity strike (section 516 of the Labour Code). The Government insists on the fact that it is trying to prevent the abusive use of solidarity strikes that would result in long periods of immobility;

-- the implicit refusal of the right to strike for federations and confederations (section 505 of the Labour Code).

-- the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice, and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association). The Government indicates that the relationship between the different constitutional provisions would require the revision of the trade union's request for registration.

The Committee observes that the Government stresses with respect to all the points raised the supreme importance of article 163 of the Constitution by virtue of which international conventions and treaties are incorporated ipso jure into national law and prevail over other laws and lower-level standards. The Government indicates further that the Minster of Labour is in the process of drafting the necessary directives so that when mere administrative acts covered by national laws occur, then the criteria set out in the Constitution would apply. In the case of conflict, resort will be had to international labour Conventions, and these will prevail over the laws. In addition, the Government states that: (i) it is seeking to identify acceptable mechanisms so that while there is no new labour legislation, the existing legal provisions will not apply and the international labour Conventions will prevail; (ii) the Government has never abandoned the idea of continuing with the reform of the labour legislation. In this regard, if the Ministry of Labour considers it necessary, it will request the technical assistance of the Office to bring the labour legislation into conformity; (iii) the Ministry of Labour indicates its good will in retaining all the positive aspects of the technical assistance mission that visited Ecuador in 1997; and (iv) it requests the Committee to indicate what could be taken from the agreements reached during the mission in 1997, in the light of the new Constitution, in order to assist them with the follow-up. Finally, the Government states that it is seeking solutions to the other problems raised by the Committee on which it has not yet commented.

In these circumstances, the Committee, while taking note of the good will expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention. The Committee requests the Government to take the measures necessary without delay to bring the legislation and the practice into conformity with the Convention. The Committee reminds the Government that the Office is available to provide technical assistance, and expresses the firm hope that the Government will supply information in its next report concerning all progress achieved with respect to the questions raised.

The Committee notes that certain new provisions of the 1998 Constitution give rise to, or could give rise to, problems with respect to the application of the Convention:

-- Article 35(9) which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations for those in State institutions, the workers will be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the requirements of the Convention. In this regard, the Committee requests the Government to indicate if article 35(9) of the Constitution implies that only one organization or many can be established per public body or institution; if many can be established, whether preferential rights are granted to the most representative organization, and in the case of an organization becoming the most representative, whether it can exercise these rights in the place of the organization that no longer has the majority.

-- Article 35(10), first paragraph, which recognizes and guarantees the right to strike and the right to lockout to workers and employers pursuant to the legislation and second paragraph, which states that "it is prohibited to interrupt, for whatever reason, public services in particular those concerning health, education, justice and social security; electrical energy, drinking-water and sewers; transformation, transport and distribution of fuel, public transport and telecommunications. The law will provide appropriate sanctions". The Government states that the first part of paragraph (10) recognizes and guarantees the right to strike and that the concept of "interruption" under the Constitution is interpreted as an action which results in the interruption or cessation, far removed from what the law generally stipulates. In this context, the Committee is of the opinion that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous General Surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the interruption of strikes in the public sector is too extensive and that in particular education and general transport services (of persons and products) cannot be considered to be essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to take measures to amend the constitutional provisions noted in conformity with freedom of association principles and to specify the measures envisaged or taken to grant compensatory guarantees to workers deprived of the right to strike.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report.

The Committee observes that the Government requested the technical assistance of the Office to bring the legislation into conformity with the provisions of the Convention and that a mission visited the country from 4-10 September 1997. The Committee notes that during the mission two Bills were drafted providing for the repeal or amendment of certain legislative provisions criticized by the Committee in its previous observations and direct requests.

The Committee observes that one of the Bills provides:

(1) the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests; and

(2) repeals section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, while it lays down that strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

The Committee observes that the other Bill provides:

-- an addition to section 441 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-- section 443(11) is amended to the effect that organizations of a higher level enjoy the right to express their opinions on the Government's economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-- adding a second paragraph to the end of section 455 providing that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-- the deletion from section 455 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official;

-- the amendment of section 461 on the dissolution by administrative measures of a works committee in order to grant to the workers' or employers' organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee;

-- the amendment of section 69 of Act No. 133 on minimum services in the event of strike (introduced into the Labour Code following section 503) providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers' and employers' organizations in the sector; and

-- the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-- the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 439, 455 and 448 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced for works trade unions in order not to hinder the establishment of such organizations, particularly in view of the very large proportion of small enterprises in the country;

-- the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association);

-- the deprival of the guarantee of stability to workers who take part in a solidarity strike (section 65 of Act No. 133, including following section 498 of the Labour Code); and

-- the implicit refusal of the right to strike for federations and confederations (section 491 of the Labour Code).

The Committee observes that in its report the Government indicates that the draft legislative reforms transmitted to Congress in 1989 have been reactivated and that for this purpose the Ministry of Labour has transmitted them to the President of the Congress under cover of Communication No. 098-AIT-97 of September 1997.

The Committee is surprised that the Government does not mention in its report the Bills drafted during the recent ILO technical assistance mission. In these circumstances, the Committee is therefore bound to insist that the Government take the necessary measures with the utmost dispatch in order to bring the legislation and practice into conformity with the Convention. The Committee expresses the strong hope that the Government will supply information in its next report on all progress made in relation to the questions which have been raised for many years.

[The Government is asked to supply full particulars to the Conference at its 86th Session.]

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments concerned:

- the denial of the right to organize to civilian employees of the armed forces (Case No. 1664 of the Committee on Freedom of Association);

- the loss of the guarantee of job security by workers who participate in sympathy strikes (section 65 of Act No. 133);

- the implicit denial of the right to strike for federations and confederations (section 491 of the Labour Code); and

- the responsibility for the decision resting with the Ministry of Labour in the event of disagreement between the parties as to the minimum services to be maintained in the event of a strike in services considered by the Government to be essential, even if they are not necessarily so, including when the State is a party to the dispute (new section 503 of the Labour Code).

From the information supplied in its report, the Committee notes that the Government reiterates in general terms the viewpoints expressed previously, without providing any new element to show that the Government is interested in giving full effect to the provisions of the Convention.

Under these conditions, the Committee is bound to re-emphasize its previous observations and once again request the Government to take measures to amend the legislation so that the civilian employees of the armed forces have the right to establish their own organizations, if they so wish; workers who participate in a sympathy strike enjoy the guarantee of job security set out in section 496 of the Labour Code; to ensure that the exercise of the right to strike is not limited to federations and confederations; and that disagreements between the parties on minimum services in the event of a strike in services that are not essential in the strict sense of the term are resolved consensually.

The Committee hopes that the Government will provide information in its next report on any progress achieved on the above matters.

[The Government is asked to report in detail in 1997.]

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1767 (297th Report, paragraphs 295 to 305), which relates to the restrictions on the right to organize at the first and higher levels in the nursing sector, and recalls that its previous comments concerned:

- the ban on public servants from forming unions (section 10 (g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55 of the Labour Code, new sections);

- the penalties of imprisonment for instigators of and participants in collective work stoppages (Decree No. 105, 7 June 1967);

- the requirement that the members of the executive committees of works councils be of Ecuadorian nationality (section 455 of the Labour Code);

- the dissolution by administrative decision of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities and the requirement that this must be established in union statutes (section 443 (11) of the Code).

In this respect, the Committee regrets to note that the Government has not provided any reply to the comments that it has been making for many years and that it has confined itself to stating that the National Congress has not yet dealt with the legal reforms.

With regard to the denial of the registration of the Federation of Free Nursing Auxiliaries of Ecuador (FAELE) and of various trade unions of workers in the same sector (on the grounds that they do not represent more than 30 affiliated members and because these workers are considered to be public servants, Case No. 1767), the Committee wishes to remind the Government that under the terms of Articles 2 and 5 of the Convention, workers "without distinction whatsoever" have the right to establish and join organizations of their own choosing "without previous authorization", both as first-level organizations and as federations and confederations.

The Committee once again requests the Government to take the necessary measures so that the draft legislative reforms to which it has been committed for some time permit public servants to establish trade unions; reduce the minimum number required for the establishment of first-level and higher trade union associations; prohibit the imposition of penalties of imprisonment on the instigators of strikes and those who participate in them, in accordance with the principles of freedom of association; modify the requirement to be of Ecuadorian nationality to be a member of the executive committee of a works council; ensure that the dissolution of a works council is only possible by judicial authority; and abolish the prohibition placed upon trade unions from taking part in religious or political activities.

The Committee once again expresses the firm hope that all of its comments will be taken into account in the new legislation and that the frequently announced adoption of this legislation will take place in the near future.

The Committee requests the Government to inform it in its next report of any positive developments on this matter and trusts that it will finally be able to note that the new legislation has been brought into conformity with the principles and provisions of the Convention.

Furthermore, the Committee is addressing a request directly to the Government.

[The Government is asked to report in detail in 1997.]

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to:

- the denial of the right to organize of civilian employees of the armed forces (Case No. 1664 of the Committee on Freedom of Association);

- the loss of the guarantee of job security by persons participating in sympathy strikes (section 65 of Act No. 133);

- the implicit denial of the right to strike for federations and confederations (section 491 of the Labour Code); and

- the fact that the decision rests with the Ministry of Labour in the event of disagreement between the parties as to the minimum services to be maintained in the event of a strike in services considered by the Government to be essential, even if they are not necessarily so, including when the State is a party to the dispute (new section 503 of the Labour Code).

With regard to the first point, the Committee notes that the Supreme Court of Justice ruled that the enterprise TRANSNAVE and its workers were excluded from the scope of the Labour Code because they are governed by military laws and regulations, and that they have thus been denied the right to organize.

In this connection, the Committee reminds the Government that under Article 2 of the Convention workers and employers, without any distinction whatsoever, have the right to form organizations of their own choosing, with the one possible exception contemplated in Article 9, of members of the armed forces and the police force. The Committee considers that the civilian employees of TRANSNAVE should have the right to form, should they so wish, their own organizations. The Committee asks the Government to keep it informed of any measures adopted to ensure the right to organize of this category of workers.

As concerns the loss of the guarantee of job security for persons participating in sympathy strikes, the Committee, while noting the information provided by the Government that ten sympathy strikes were registered in 1992, would call attention to the principle according to which "the maintenance of the employment relationship is a normal consequence of recognition of the right to strike". In the Committee's view, legislation should provide for genuine protection in this respect, otherwise the right to strike may be devoid of content (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 139).

In this regard, the Committee considers that it should not be possible to sanction workers with dismissal for participating in sympathy strikes when "the initial strike they are supporting is itself lawful" (see 1994 General Survey, op. cit., paragraph 168).

As concerns the implicit denial of the right to strike for federations and confederations, the Committee takes due note that, according to the Government between November 1975 and the present, confederations have carried out 28 national strikes, even though the labour legislation does not expressly recognize this right for federations and confederations. The Committee therefore requests the Government to take measures to bring the legislation into conformity with the practice and with the principles of freedom of association.

As concerns the determination by the Ministry of Labour of minimum services to be maintained, in the event of a disagreement between the parties, in cases of strike in services considered by the Government to be essential, even if they are not necessarily so, the Committee notes the Government's information to the effect that between the time the new law came into force until October 1994, the Director-General of Labour has exercised this exceptional power, having first consulted the parties, on three occasions when there were disputes in food and hotel enterprises in the private sector. In this connection, the Committee recalls that it has always been of the view that the right to strike may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey, op. cit., paragraph 159), which is not the case of the food industry and hotels sector.

With regard to minimum services which are not considered to be essential in the strict sense, bearing in mind that a minimum service system restricts one of the essential means of pressure available to workers to defend their economic and social interests, the Committee considers that their organizations should be able, should they so wish, to participate in defining such a service, along with employers and the public authorities (see 1994 General Survey, op. cit., paragraph 161). In this regard, the Committee asks the Government to take steps in order that the legislation be amended in conformity with the above-mentioned principle.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report and the discussions that took place at the Conference Committee in 1993, and recalls that its previous comments concerned:

-- the ban on public servants' forming unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

-- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55 of the Labour Code, new sections);

-- the penalties of imprisonment for instigators of and participants in collective work stoppages (Decree No. 105, 7 June 1967);

-- the requirement that members of the executive committees of works councils be Ecuadorian (section 455 of the Labour Code);

-- the dissolution by administrative decision of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

-- the prohibition placed on unions from taking part in religious or political activities and the requirement that this must be established in union statutes (section 443(11) of the Code).

With regard to the draft reforms of the legislation to which the Government committed itself, the Committee regrets to note that they have still not been submitted to the National Congress. The Ministry of Labour has therefore contacted the President of the National Congress, through various channels, asking that the procedure be expedited as a matter of urgency.

The Committee expresses the firm hope that account was taken, in the drafting of the above-mentioned reforms, of the proposals made during the 1985 direct contacts mission and of the Committee's other comments. It expresses the hope yet again that the reforms will be adopted in the near future.

The Committee asks the Government in its next report to provide information on any positive developments in this matter and trusts that it will be able to note that the new legislation is in keeping with the principles and provisions of the Convention.

The Committee is also addressing a request directly to the Government.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the information supplied by the Government in its last report, the discussions that took place in the Conference Committee in 1992, and the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 1617 and 1664 (284th and 286th Reports of the above Committee, adopted by the Governing Body at its 254th and 255th meetings, November 1992 and February 1993). The Committee draws the Government's attention to the following:

1. Article 2 of the Convention:

- Denial of the right to organize of civilian employees of the armed forces.

The Committee takes note of Case No. 1664, which concerns the Government's refusal to register the Union of Ecuadorian Shipping Transport Workers (TRASNAVE).

The Committee points out, as did the Committee on Freedom of Association, that members of the armed forces to be excluded from the application of Article 9 of the Convention should be defined in a restrictive manner, and considers that the civilian employees of TRASNAVE should have the right to establish organizations of their own choosing without previous authorization. The Committee asks the Government to keep it informed of any measures adopted to ensure the right to organize of this category of workers.

2. Sympathy strikes. As regards section 65 of the new Act, No. 133 (procedures for calling sympathy strikes and loss of the guarantee of job security by persons joining such strikes), the Committee takes note of the following comments by the Government:

- in exercising the right to strike (even in the case of a sympathy strike), strikers may occupy the premises of the workplace for as long as the action lasts, and where operations are paralysed in that way the legislator is justified in prescribing in detail the procedure and the time-limits applicable to the occupation of the plant; and

- the object of the guarantee of security of tenure under section 496 of the Labour Code is to benefit the principal strikers, that is, the workers involved in a collective dispute.

The Committee observes, as did the Committee on Freedom of Association (Case No. 1617), that the new statutory rule limits the right to strike in sympathy to a three-day period. The same rule provides that those participating in a sympathy strike will not enjoy the benefit of the guarantee of security of tenure under section 496 of the Labour Code. The Committee regrets that the legislation limits sympathy strikes to three days, and suppresses the benefit of tenure which impairs the right of workers' organizations to formulate a programme of action, and recalls that workers' organizations should be able to have recourse to those strikes which are in support of legal strikes. The Committee requests the Government, as did the Committee on Freedom of Association, to take the necessary measures to guarantee the job security of workers who participate in strikes of this nature.

3. Impact of compulsory arbitration on the right to strike. With reference to the Committee's request to the Government to state whether compulsory arbitration (pursuant to sections 51-61 of Act No. 133) prevents the calling of a strike before or after the final decision of the Conciliation and Arbitration Court, the Committee notes the Government's reply and in particular that, under section 490 of the Labour Code, a strike may be called on any of the seven grounds listed in the above provision pending the Court's decision on the dispute before it; and that a strike may not be called during the compulsory mediation stage (section 56 of Act No. 133) which precedes the judicial proceedings in the Conciliation and Arbitration Court. However, the Government states that even in the latter case, there is a proviso in the above-mentioned section whereby on certain grounds (set out in section 490(1), (2) and (7)), a strike may also be called during the stage of "negotiations" or mediation.

With regard to the information requested by the Committee on whether the 20-day period that has to elapse between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature is added to the 37-day period of compulsory mediation and arbitration, the Committee duly notes that, according to the Government, the 20 days between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature are not added to the 37 days between the submission of the case and the final decision by the Conciliation and Arbitration Court of first instance. Collective dispute proceedings are not suspended by the 20-day period laid down in section 503, just as dispute settlement is not suspended by strikes which are a means of action recognized by law and, as such, constitute the most effective tool available to workers to exert pressure with a view to settling the conflict of interests inherent in collective labour disputes.

4. The right to strike of federations and confederations. In answer to the Committee's question as to whether federations and confederations have the right to call strikes, the Committee takes note of the Government's reply. None the less, as the Committee on Freedom of Association has pointed out (Case No. 1617), the legislation in force does not recognize the right to strike of federations and confederations (it only recognizes the works councils' right to declare a strike under section 491 of the Labour Code), and before the enactment of the amending Act No. 133 the trade union organizations were able lawfully to use the sympathy strike for carrying out strikes not only at enterprise level but also at higher (even provicial or nationwide) levels. In view of the implications, so far as strikes are concerned, of the amendments introduced by Act No. 133, the Committee requests the Government, as did the Committee on Freedom of Association, to take action with a view to the recognition, by law, of the federations' and confederations' right to strike.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the discussions that took place at the Conference Committee in 1992 and the Government's report. It also notes the conclusions and recommendations of the Committee on Freedom of Association concerning Case No. 1617 (284th Report, paras. 1004 to 1010).

In its previous comments the Committee noted that the new Act No. 133, amending the Labour Code (published on 21 November 1991 in the Official Gazette) introduces the following provisions which may raise problems in the application of the Convention:

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55);

- the decision by the Ministry of Labour, when there is disagreement between the parties, on the minimum services to be provided in the event of a strike in the services considered as essential, even when the State is party to the dispute (new section 503).

With regard to the first point, the Government states that Article 8, paragraph 1, of the Convention stipulates that in exercising the right to organize workers must respect the law of the land, and that the Convention allows each member State to determine the minimum number of workers in accordance with its own circumstances. The Government considers that in view of the prevailing circumstances in the Ecuadorian economy and productive and social sectors, the minimum number of workers required to form trade unions had to be amended, because it was established in 1938 when industrial and labour development were at their very beginnings.

The Government also states that the dynamics of relation in the productive sector and labour law made it essential and urgent to adjust labour standards on the requisite minimum number of workers, as Ecuador is engaged in a process of subregional economic, customs and industrial integration.

With regard to the Government's reference to Article 8, paragraph 1, of the Convention, the Committee points out that account should also be taken of Article 8, paragraph 2, which states: "The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention".

Although the minimum number of 30 workers would be acceptable in the case sectoral trade unions, as it said in its previous comments, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.

As to the Ministry of Labour's responsibility for the decision on minimum services in the event of a strike, when there is disagreement between the parties, the Committee notes that, according to the information contained in the Government's report, Ecuadorian legislation considers that it is a fundamental obligation of the Government to ensure that essential minimum services are provided in the event of strikes in institutions that provide services in the social or public interest.

The Committee also notes that in 1991 the effects of a serious cholera epidemic in Ecuador made the provision of hospital and health services imperative and that there were none the less both regional and national strikes among health workers which completely paralysed medical care, which resulted in loss of life and created a serious risk and a state of emergency for the people deprived of this essential service.

The Committee agrees with the Government's view that preserving the right to life and health of citizens is a fundamental obligation in any society and particularly in societies which are on the brink of poverty, and it has always acknowledged that strikes may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population, such as hospital services.

However, the Committee considers that it would be preferable for the minimum services in public services which are not considered as essential in the strict sense of the term to be determined, where there is disagreement between the parties, by an independent body. The Committee asks the Government to provide information on the application in practice of this provision.

Furthermore, the Committee again notes with regret that the new legislation does not amend the following provisions which are incompatible with the requirements of the Convention, as the Committee has been pointing out for many years:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the requirement that members of the executive committees of works councils be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461);

- the prohibition placed on unions from taking part in religious or political activities (section 443(11)).

The Committee notes from the information supplied by the Government that, in accordance with the commitment made at the Conference Committee in June 1992, the Ministry of Labour requested the President of the National Congress in Communication No. 92081 of 21 July 1992 to initiate urgently the procedure for the adoption of the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, in order to eliminate the discrepancies between certain international labour Conventions ratified by the country. It also notes the reply from the Secretary-General of the National Congress to the effect that the procedure for the adoption of the draft amendments to the Labour Code requested by the Ministry would be initiated. The Committee asks the Government to keep it informed of progress in the adoption of these drafts by Parliament and to provide copies of these provisions once they have been adopted.

The Committee again urges the Government to take the necessary measures to bring law and practice into complete conformity with the Convention at an early date and asks it to provide detailed information in this respect in its next report.

The Committee is also addressing a direct request to the Government.

[The Government is asked to provide full particulars to the Conference at its 80th Session.]

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the adoption of Act No. 133 to reform the Labour Code, published 21 November 1991, and requests the Government to provide comments in its next report on the following questions:

1. Sympathy strikes. The Committee notes that the new Act, in its reference to sympathy strikes (new section 498), although it recognises the right to such strikes for a three-day period, provides that sympathy strikers shall not enjoy the guarantee of employment security set out in section 496 of the Labour Code.

The Committee requests the Government to clarify whether Act No. 133 has the effect, as it would appear from its wording, of granting workers the right to call sympathy strikes, while depriving them at the same time of the general guarantee of employment security and if so to amend it.

2. Impact of compulsory arbitration on the right to strike. The Committee notes that a compulsory mediation and arbitration procedure is established (of a combined duration of 37 days) by virtue of sections 56 and 61 of Act No. 133. The Committee requests the Government to state whether the compulsory arbitration procedure prevents the calling of a strike before or after the final decision of the Conciliation and Arbitration Court.

With regard to the 20-day period that has to elapse between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature, the Committee also requests the Government to state whether this period is added to the 37-day period of compulsory mediation and arbitration.

3. Right to strike in respect of federations and confederations. The Committee requests the Government to state whether federations and confederations have the right to call strikes.

The Committee hopes that it will have received the Government's reply in time for its next session.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report, and particularly the adoption of Act No. 133 to reform the Labour Code published on 21 November 1991.

The Committee takes due note of the new wording of section 490 of the Labour Code, under which the number of cases in which a strike can be called has been extended (paragraphs 4 to 7); the Committee nevertheless notes that the new Act introduces the following provisions which may raise problems with regard to the application of the Convention:

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils. Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions;

- decision by the Ministry of Labour, in the event of disagreement between the parties, on the minimum services to be provided in the event of a strike in services that are considered to be essential, even when the State is a party to the dispute.

The Committee also regrets that the above text does not contain amendments relating to the following provisions, which it has been pointing out for many years are incompatible with the requirements of the Convention:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 433(11) of the Code).

The Committee notes the information supplied by the Government concerning the presentation on 22 May 1990 to the Secretariat of the National Congress by a member of the Congress of four draft amendments and two legal interpretations, the purpose of which is to bring the national legislation into conformity with the Convention. The Committee requests the Government to keep it informed of the progress of the draft texts before the legislature and to supply copies of them once they are adopted.

The Committee once again urges the Government to take the necessary measures in the near future to bring the law and practice into full conformity with the Convention and requests it to supply detailed information in this respect in its next report.

In addition, the Committee is addressing a request directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 79th Session.]

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the Government's report.

1. For many years, the Committee has been referring to the following provisions of the legislation which were incompatible with the requirements of Conventions Nos. 87 and 98:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443, paragraph 11, of the Code);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

The Committee recalls that, at the Government's request, an advisory mission visited Ecuador (November-December 1989) to examine, inter alia, questions relating to the application of Conventions Nos. 87 and 98. According to the mission's report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources, drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee noted that, according to the Government's report, these drafts were to be submitted immediately to Congress with the support of the Executive and its recommendation that they be adopted.

In this connection, the Government indicates in its latest report that the drafts prepared jointly by the above mission and the Government were formally submitted to the Secretariat of the Congress, but that it cannot guarantee that they will become law. Furthermore, the Government states in its report that, at the initiative of the Minister of Labour and Human Resources, labour experts are discussing the enactment of a new law to cover the unionisation of public employees in general.

The Committee stresses the importance of the provisions of the legislation which are incompatible with the requirements of Conventions Nos. 87 and 98, and asks the Government to report on progress with regard to the drafts submitted to Congress and on the status of the work to draft legislation on the trade union rights of public employees. It hopes that in its next report the Government will be able to indicate that there has been progress in the application of these Conventions.

2. Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in 1988. The CEDOC referred to a number of provisions which the Committee has already criticised and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the bye-laws of incipient organisations and, according to the CEDOC, decisions concerning refusal to register are illegally delegated to officials of a lower category.

The Government indicates that the CEDOC's comments refer to the period of the previous Government and that it is therefore virtually impossible for the present Government to give a detailed account of the activities of the Office of Trade Union Organisations during that period. The Government denies that decisions concerning registration are illegally delegated to officials of a lower grade.

In view of the Government's statement, the Committee invites the CEDOC to indicate whether its comments on the application of the Convention which it made when the former Government was in power still apply and, if so, to specify actual cases of infringements of the Convention.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee takes note of the Government's report and the discussions that took place in the Conference Committee in 1989.

The Committe notes that, at the Government's request, an advisory mission visited Ecuador from 27 November to 1 December 1989 to examine questions relating to the application of Conventions Nos. 87 and 98, among others. According to the mission report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee notes that, according to the Government's report, these drafts are to be submitted immediately to Congress with the support of and recommendation for adoption expressed by the Executive.

The Committee has been pointing out that the following provisions of the legislation are incompatible with the requirements of the Convention:

- the prohibition placed on public servants from setting up trade union (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement to be Ecuadorian for membership of the executive committee of a works council (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443(11) of the Code);

- the penalty of imprisonment laid down by Decree No. 105 (7 June 1967) for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in a communication of 22 January 1988. The CEDOC referred to a number of provisions which the Committee has already criticised, and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the by-laws of incipient organisations and, according to the CEDOC, decisions concerning refusals to register are illegally delegated to officials of a lower category. Subsequently, on 13 April 1989, the CEDOC sent further comments stressing that General Clause 12 of the State's 1988-89 Budget obstructs collective bargaining. The Committee regrets that the Government has not replied in detail on these points.

The Committee requests the Government to inform it of progress in the passage of the drafts that have been submitted to Congress and expresses the hope that in its next report the Government will be in a position to indicate progress in the application of Conventions Nos. 87 and 98 and that it will send a detailed reply to the CEDOC's comments.