Texts of pending comments

Articles 1(1), 2(1) and 25 of the Convention.Trafficking in persons. 1. National plan of action. The Committee previously noted the legislative and institutional framework for combating trafficking in persons and, observing that a new national plan of action against trafficking in persons was being prepared, it encouraged the Government to take steps to ensure its adoption.

The Committee notes the Government’s reference in its report to the adoption in 2019 of the Plan of Action against trafficking in persons in Ecuador 2019–30, which was drawn up in the context of an extensive participatory process with institutional actors and contributions from civil society, including the family members of victims. The Committee also welcomes the intercultural basis of the Plan of Action, which provides culturally relevant prevention and protection measures to cater for the specific needs of victims geared to diverse cultural contexts. The Plan of Action contains four components: (i) promotion of rights and prevention of trafficking; (ii) provision of care for trafficking victims, and full promotion and restoration of their rights; (iii) investigation and prosecution of the crime of trafficking in persons; and (iv) governance. The Plan of Action identifies targets for each component in terms of results and indicators, and its strategic management is the responsibility of the Interinstitutional Coordinating Committee for the Prevention of Trafficking in Persons and Illicit Trafficking of Migrants and for the Protection of Victims. The Committee requests the Government to provide information on the steps taken with a view to implementing all components of the Plan of Action against trafficking in persons in Ecuador 2019–30, indicating the results achieved and also the difficulties identified in the follow-up to the Plan and its evaluation. The Committee also requests the Government to provide information on the activities of the Interinstitutional Coordinating Committee for the Prevention of Trafficking in Persons and Illicit Trafficking of Migrants and for the Protection of Victims, including examples illustrating how coordination works between the various institutions involved in the implementation of the Plan.

2. Protection and assistance for victims. The Committee notes the establishment of a Case coordination team for the protection of victims of human trafficking and illicit trafficking of migrants, composed of eight state institutions, which, after they identify a victim, carry out inter-institutional coordination to provide comprehensive care and protection in line with their competencies. The Committee also notes that the Protocol for inter-institutional action for comprehensive care and protection for trafficking victims, adopted in 2020, describes in detail the role played by each of the institutions responsible for providing care for victims. Moreover, section 122 of the Basic Act on human mobility (as amended in 2021) provides that all institutions tasked with providing assistance for human trafficking victims must implement specialized models of care which will be binding on service providers at the national level. The Committee notes that, according to the statistical information contained in the Plan of Action, of the total number of victims of trafficking for sexual exploitation recorded in 2014–16, 3 per cent were foreign citizens and in 11 per cent of cases it was not possible to determine the victim’s nationality. The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women, in its concluding observations of 2021, referred to the low number of investigations and prosecutions in relation to reported cases of trafficking, owing partly to the risk of deportation for women victims of trafficking who are undocumented or in an irregular situation (CEDAW/C/ECU/CO/10, paragraph 23(c)). The Committee requests the Government to provide information on the action taken by the Case coordination team for the protection of victims of human trafficking and illicit trafficking of migrants and on the comprehensive protection measures from which trafficking victims have benefited. The Committee also requests the Government to provide examples of specialized care models, in particular those implemented for undocumented foreign victims.

3. Penalties. The Committee notes that the Government, in reply to its request for information on the application of the provisions of the Criminal Code relating to trafficking in persons (sections 91 and 92), provides examples of convictions related to the crime of trafficking in persons. As at the end of July 2021, a total of 121 persons had been prosecuted, and 39 persons had been sentenced for trafficking in persons. The Government also indicates that the Directorate of Controls and Inspections has not received any complaints relating to forced labour. The Committee also notes that the Ministry of the Interior, the National Police and the Public Prosecutor’s Office have developed a practical guide for identifying, acquiring, safeguarding, processing and using possible clues or evidence in cases of trafficking in persons. Police officers and prosecutors have been trained in how to use the guide. The Committee requests the Government to continue providing statistical information on the investigations launched, judicial proceedings initiated, and the type of convictions handed down in relation to the crime of trafficking in persons for sexual or labour exploitation. The Committee also requests the Government to provide information on the measures taken to strengthen the capacities of labour inspectors to detect elements that characterize situations of trafficking in persons for the purposes of labour exploitation, and to be able to collaborate with the prosecution service and the police in the investigation of such situations.

Article 2(2)(c). Prison labour. In its previous comments, the Committee noted the Regulations concerning the dependent work of persons serving a custodial sentence (MDT-2015-0004), which contain provisions ensuring that prison labour carried out for the benefit of private entities is of a voluntary nature and is performed with the free written consent of the person concerned and in conditions similar to those of a free employment relationship. The Committee duly notes the information provided by the Government, including statistics, on employment contracts concluded by prisoners working for the benefit of private enterprises. The Committee also notes the regulations governing the special contractual arrangement for services provided by prisoners (Interministerial Agreement between the Ministry of Labour and the Ministry of Justice, Human Rights and Religious Worship of 11 May 2018), section 7 of which provides that the contract for the provision of services must contain the express consent of the prisoner for performing the activities covered by the contract and also contain information on remuneration and conditions of work.

Impact of compulsory prison labour on the application of Article 1 of the Convention. In its previous comments, the Committee noted that section 60 of the Penal Code establishes compulsory community work as a non-custodial penalty and it requested the Government to indicate whether compulsory community work can be imposed by a judge without the consent of the convicted person and, if so, to specify the offences for which this penalty can be applied.

The Committee notes the Government’s reference in its report to the new “Regulations on the national system of social reintegration” adopted in 2020, which regulate community work for persons sentenced to imprisonment under a semi-open regime. Under section 254 of the Regulations, prisoners who have completed 60 per cent of their sentence can avail themselves of the semi-open regime, subject to fulfilling certain requirements, including the obligation to perform 100 per cent of the community work activities specified in their exit plan. The Committee notes the Government’s emphasis that the activities linked to the community or community work are voluntary.

However, the Committee notes that the Government does not provide any information on the obligation to perform community work, which constitutes one of the non-custodial penalties that can be imposed by a judge, in accordance with sections 60(2) and 63 of the Penal Code. In this regard, the Committee recalls that criminal penalties that involve compulsory labour, including compulsory community work, come within the scope of Article 1(a) and (d) of the Convention when they are imposed on convicted persons who have held certain political views or expressed ideological opposition to the established political, social or economic order, or have participated in a strike. The Committee therefore once again requests the Government to clarify whether compulsory community work can be imposed by a judge without the consent of the convicted person. If so, the Committee requests the Government to specify the offences for which compulsory community work can be imposed.

Article 1(a). Imposition of compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. With regard to its comment made in the previous paragraphs, the Committee notes that section 393 of the Penal Code establishes the penalty of community work for first-class offences that include unarmed public disturbance, except in the case of legitimate defence of the self or of a third party. Noting that this provision is drafted in broad terms, the Committee requests the Government to provide information on the application in practice of section 393 of the Penal Code, indicating whether judgments have been handed down under this provision and, if so, to indicate the penalties imposed and the acts that gave rise to such judgments.

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.

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.]

The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 22 January 2020. The Committee requests the Government to provide its comments in this regard.

Articles 1–3 of the Convention. Contribution of the employment service to employment promotion. The Committee notes the indication in the Government’s report that the Employment Club Network (Red Social Empleo) has 28 offices at the national level in 21 of the 24 provinces in the country, and also has an online platform. The Government adds that, between January 2015 and June 2021, through the services of the Network, 263,104 persons were placed in dependent employment at the national level, including 52,623 during the course of 2020. According to the data provided by the Government, the provinces with the highest number of persons placed in jobs in 2020 were Orellana (7,992), Pichincha (7,472) and Sucumbios (7,272), and the province with the lowest number of people placed was Galápagos (nine). Most of the job placements were in the services (11,486), construction (10,011) and public (9,699) sectors. The Government also indicates that 39,327 job vacancies were created, 85,946 vacancies were sought and 175,526 persons were registered in the Employment Club Network in 2020. The Committee requests the Government to continue providing detailed information, including statistics disaggregated by gender and age, on the measures adopted to ensure the efficient operation of the public employment service and on their impact. Observing that the number of provinces covered by the offices of the Employment Club Network has fallen from 32 to 21 since 2014, the Committee requests the Government to indicate the reasons for this reduction in coverage and its impact, particularly on the least economically developed areas. The Committee also requests the Government to continue providing information on the number of persons seeking employment, the number of vacancies notified and the placements made through the Employment Club Network.

Articles 4 and 5. Cooperation with the social partners. The Committee notes the Government’s indication that the Employment Club Network undertakes activities to strengthen the vocational profile of citizens, including the provision of free monthly capacity-building courses based on cooperation between private enterprises and public institutions. During 2020, a total of 1,223 skills courses were recorded, with 65,535 persons receiving skills training. The Government adds that one of the essential activities of the public employment service is capacity building for new enterprises, especially in the private sector, and that 7,261 enterprises received training in 2020. The Committee requests the Government to continue providing updated and detailed information on the impact of the measures adopted, in collaboration with the social partners, to ensure the best possible use of the employment service.

Article 7. Particular categories of applicants for employment. The Committee notes the Government’s indication that, with a view to promoting linkages between labour supply and demand, with special emphasis on vulnerable groups requiring priority attention, the Employment Club Network organizes employment fairs which facilitate the matching of the vacancies available on the labour market with jobseekers. It adds that virtual fairs have been organized in 2020 and 2021 due to the COVID-19 pandemic. The Committee requests the Government to provide detailed information, including statistics disaggregated by gender and age, on the impact of the employment fairs organized by the Employment Club Network in relation to vulnerable groups requiring priority attention.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

The Committee notes the Government’s reply to the joint observations of the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT) and the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 1 October 2020.

The Committee also notes the observations of Public Services International in Ecuador (PSI-Ecuador), received on 1 September 2021, on issues examined by the Committee in the present comment, and also 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, although the undertaking given previously did not result in practical action, the Government wishes to receive technical assistance, for the time being with regard to tripartite social dialogue. Noting with regret that the Government has not taken action to follow up the technical assistance provided by the Office in December 2019 concerning measures to respond to the comments of the ILO supervisory bodies, the Committee firmly hopes that the assistance in which the government has expressed an interest will be given practical effect very soon and that any strengthening of social dialogue that results from it enables progress to be made with regard to adopting the measures needed 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 1 of the Convention. Adequate protection against acts of anti-union discrimination. For many years, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination at the time of access to employment. The Committee notes that the Government reiterates that the labour regulations in force give an adequate level of protection and that it does not consider it necessary to issue an additional standard in this respect. Recalling that Article 1 of the Convention covers the prohibition of anti-union discrimination at the time individual workers are hired, so that access to employment is not made subject to the condition that workers shall not join a union or relinquish union membership, as well as practices such as “blacklisting” members to prevent them being hired, the Committee underlines the need for the above-mentioned provisions to be included in the legislation and requests the Government to provide information on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that in accordance with section 221 of the Labour Code, collective labour agreements must be concluded with the enterprise committee or, if one does not exist, with the organization with the largest number of worker members, provided that the latter represents over 50 per cent of the workers in the enterprise. The Committee previously urged the Government to adopt the necessary measures, in consultation with the social partners, to amend section 221 so that if there is no organization that represents more than 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee notes that the Government reiterates that this requirement for the negotiation of a collective agreement is closely connected to the principles of democracy, participation and transparency since the benefits obtained in the collective agreement apply to all workers in the enterprise or institution. The Committee once again points out that while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see 2012 General Survey on the fundamental Conventions, paragraph 226). The Committee recalls that, even though the requirement of representativeness for signing collective agreements is fully compatible with the Convention, the level of representativeness set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining as referred to by Article 4 of the Convention. The Committee recalls that in previous comments it noted the low rate of coverage of collective bargaining in the private sector. The Committee observes that, according to the statistics provided by the Government, between 2019 and August 2021 a total of 45 collective agreements were signed in the private sector. In light of the above, the Committee urges the Government to take the necessary measures, after consulting the social partners, to amend section 221 of the Labour Code so that if there is no organization comprising more than 50 per cent of the workers, trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee requests the Government to provide information on all the measures taken or envisaged in this respect. The Committee also requests the Government to continue providing information on the number of collective agreements signed and in force in the country, and also the sectors of activity (including agriculture and the banana sector) and the number of workers covered by them.

Application of the Convention in the public sector

Articles 1, 2 and 6. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee noted the protections against anti-union discrimination and interference, including with regard to the “compulsory purchase of redundancy mechanism”, set out in the Basic Act reforming the legislation governing the public service (Basic Reform Act). Having observed that the said Act contained provisions which explicitly protected Civil Service Committee officers, the Committee asked the Government to take the necessary measures to ensure that the legislation contained provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference. The Committee also asked the Government to indicate the penalties and compensation applicable to acts of anti-union discrimination and interference committed in the public sector and to provide information on the outcome of the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional. The Committee notes the Government’s indication that protection against acts of discrimination and the right to form trade unions are established through explicit standards, both in the Constitution of the Republic and section 187 of the Labour Code and in the Basic Public Service Act (LOSEP), which prohibits all acts of discrimination against public servants. The Government considers that the labour regulations in force provide an adequate level of protection for public servants. The Committee observes that the Committee on Freedom of Association recently examined allegations of dismissals of leaders of organizations of public servants, stating that it trusted that the Government would take the necessary measures to ensure that the legal provisions applicable to the public sector, currently focusing on the protection of Civil Service Committee officers, protect all leaders of public servants’ organizations against possible acts of anti-union discrimination (see Report No. 393, March 2021, Case No. 3347, paragraph 433). The Committee once again emphasizes that it is important that the legislation should grant the same type of protection against possible acts of anti-union discrimination and interference to all leaders of all organizations of public servants on equal terms. The Committee therefore urges the Government to take the necessary steps to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference, and also provisions that establish penalties constituting a deterrent against committing such acts. The Committee requests the Government to provide information on any measures taken or envisaged in this regard. Furthermore, with regard to the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional, the Committee notes the indication by PSI-Ecuador that the Constitutional Court, by a ruling issued on 28 October 2020, declared the compulsory nature of the purchase of redundancy with compensation to be unconstitutional. The Committee recalls that the compulsory redundancy purchase mechanism allowed the public administration, in exchange for payment of compensation, to unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination. The Committee recalls that it previously underlined the importance of measures being taken to ensure that use of the compulsory redundancy purchase mechanism did not give rise to acts of anti-union discrimination. The Committee duly notes the Constitutional Court ruling and observes that it indicates that the rules governing redundancy purchase with compensation will remain in force but application of that mechanism must not be compulsory. The Committee observes that PSI-Ecuador considers that the ruling represents an important step forward but does not provide the protection against anti-union discrimination provided by the Convention since, although it removes the word “compulsory” and also the obstacle to returning to work in the public sector for persons who have been dismissed, it leaves victims unprotected, with no consideration of restitution or compensation. PSI-Ecuador also alleges that the Government has so far not complied with the ruling as regards removing the obstacle to returning to work in the public sector. Recalling that the trade unions previously denounced the use of the compulsory redundancy purchase mechanism to dismiss public servants for their trade union activities, the Committee requests the Government to send its comments in this regard.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee observed that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 did not recognize the right to collective bargaining for public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee also noted that the 2015 amendments to the Constitution excluding the entire public sector from the scope of collective bargaining were annulled by the Constitutional Court (ruling No. 018-18-SIN-CC of 1 August 2018) and that on 4 December 2019 the Ministry of Labour issued Ministerial Order No. 373 in order to apply the Constitutional Court ruling. The Committee asked the Government to ensure the full implementation of the above-mentioned Ministerial Order in the various state institutions and urged the Government to intensify its efforts to reopen an in-depth debate with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of employees in the public sector covered by the Convention. The Committee notes the Government’s indication that although there are no regulations on collective bargaining mechanisms for public servants, since this right is conferred only on other categories of workers in the sector, the Government reiterates its undertaking to promote tripartite dialogue in this respect. With regard to the application of Ministerial Order No. 373, the Government indicates that: (i) on 6 February 2020, the Directorate for Legal Advice issued a legal opinion on the applicability of the Order; (ii) on 15 May 2020, the Ministry issued a series of circulars asking public sector entities to provide information on compliance with the Order; (iii) a total of 87 public sector institutions provided documentation and 57 of them changed the employment regime for a total of 346 public servants from the Basic Public Service Act (LOSEP) to the Labour Code; and (iv) the Ministry changed the employment regime for 242 workers. The Committee duly notes the foregoing and also observes that, according to the Government, between 2019 and August 2021, a total of 85 collective agreements were signed in the public sector. The Committee also notes that, according to PSI-Ecuador, the Basic Act on humanitarian support to combat the health crisis resulting from COVID-19 (Humanitarian Support Act), published on 22 June 2020, imposes restrictions on collective bargaining for public sector workers governed by the Labour Code. PSI-Ecuador indicates that various legal actions to declare the Act unconstitutional have been brought in this regard and that the Constitutional Court has not yet handed down any rulings. Moreover, observing that the legislation continues not to recognize the right of collective bargaining for public servants, the Committee is bound to recall once again that, under Articles 4 and 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State (employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, transport sector personnel, etc.) are covered by the Convention (see 2012 General Survey, paragraph 172) and should therefore be able to negotiate collectively their conditions of employment, including their wage conditions, since mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see 2012 General Survey, paragraph 219). The Committee therefore urges the Government to reopen an in-depth debate with the trade union organizations concerned with a view to establishing an adequate collective bargaining mechanism for all categories of public sector employees covered by the Convention. The Committee requests the Government to provide information on the collective agreements signed with public sector workers and also information on the outcome of the legal actions to declare the Humanitarian Support Act unconstitutional.

The Committee notes with regret that it has so far been unable to observe progress with regard to 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 referred to by the Government for strengthening social dialogue is put into practice 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 Government is asked to reply in full to the present comments in 2022.]

Articles 3 and 4(2) and (3) of the Convention. Criteria for determining the minimum wage. Consultations. In its previous comments, the Committee noted the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) and of the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT) of 2020, indicating that: (a) the National Labour and Wage Council (CNTS) has failed to arrive at consensus on the annual basic unified wage since 2016, with the result that the exhaustive consultations with the parties involved are not taken into account in determining wages, leaving the decision in the hands of the Ministry of Labour; and (b) adjustment of the minimum wage is done purely on the basis of annual inflation which means, when taken with the austerity measures envisaged as a result of the COVID-19 pandemic, that the minimum wage thus determined is inadequate to cover the basic family basket of goods. The Committee notes that, in reply to those observations, the Government indicates in its report that: (i) as in every year, tripartite meetings were held in November 2020 within the CNTS, at which the representatives of the employers and workers presented their positions and exhaustive reasoning in respect of the determination of the annual minimum wage; (ii) as consensus was not reached, competence with respect to fixing the basic unified wage lay with the Ministry of Labour, in line with the projected consumer price index, and in conformity with section 118 of the Labour Code; and (iii) the official rate of the basic unified wage for 2021 was fixed by Ministerial Order No. MDT-2020-249 of 30 November 2020, and remained unchanged since 2020.

In this regard, observing that at the moment of fixing the minimum wage for 2021, the Government only took the consumer price index into consideration, the Committee expects that in the future, so far as possible and appropriate in relation to national practice and conditions, the needs of workers and their families and economic factors will be taken into consideration, as provided under Article 3 of the Convention.

As regards the consultations held within the CNTS, the Committee wishes to refer to the comments already made in respect of the application by Ecuador of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) in relation to the membership of the CNTS. The Committee hopes that the follow-up to the abovementioned comments will result in full consultations with the representative organizations of employers and workers concerned, in conformity with Article 4(2) of the Convention.

Articles 1 and 9(1) of the Convention. National policy, penalties and application of the Convention in practice. In its previous comments, the Committee encouraged the Government to intensify its efforts to combat child labour within the context of the National Development Programme 2017-21. The Committee requested the Government to provide with its next report the municipal orders approved in the context of the orders on child labour. It also requested it to ensure that persons who employ children in violation of the law are penalized and that statistical data on labour inspection is made available.

The Committee takes due note, according to the Government’s report, of Ministerial Decision No. MDT-2018-0158 specifying the implementation of public policies, programmes and projects with a view to the progressive eradication of work by girls, boys and young persons, and Ministerial Decision No. 124 of 7 August 2019 of the Ministry of Economic and Social Inclusion (MIES) containing the technical service standard for the eradication of child labour. It also notes the 101 cooperation agreements with other bodies concluded by the MIES in 2021 with a view to implementing global coverage of the 11 350 girls, boys and young persons engaged in work, through the processes of prevention, individual follow up and restoration of their rights. The Committee also notes the interinstitutional cooperation agreement between the MIES and the Ministry of Labour with a view to the coordination, among other areas, of labour inspections, with the participation of the cantonal commissions for the protection of rights and the officers of National Police Department specialized in issues relating to girls, boys and young persons.

The Committee also notes that, in the context of the National Plan for the Elimination of Child Labour between 2017 and April 2020, some 693 labour controls and 11 017 inspections were carried out, of which 12.1 per cent were related to child labour. It further notes that 804 girls and boys engaged in child labour were referred to the cantonal systems for the protection of rights and that 84 boys and girls between the ages of 9 and 14 years engaged in child labour were identified in work in mechanics, catering, banana growing, family enterprises and general trading.

According to the various statistics provided in the Government’s report, the Committee also notes two sources of penalties applied in the context of child labour: (i) the statistics of the Single System for the Recording of Child Labour, which records a total of 67 penalties applied under section 95 of the Children and Young Persons Code relating to the presence of girls, boys and young persons in child labour, mainly between the ages of 10 and 14 years during the period 2018-21; (ii) the regional departments of labour and the public service of the towns of Portoviejo, Ambato, Quito, Cuenca, Loja, Ibarra and Guayaquil, which carried out labour inspections related to the project for the eradication of child labour. In 2019, penalties were handed down in 89 cases of child labour out of 863 inspections undertaken by the Enterprise Network for the Eradication of Child Labour, while in 2020 penalties were imposed in 17 cases of child labour out of 489 inspections and in the first half of 2021, penalties were imposed in 10 cases of child labour out of 292 inspections.

However, the Committee notes that, according to the statistics from the urban survey of employment, unemployment and underemployment carried out in 2019, a total of 310 373 children between the ages of five and 14 years were still subjected to child labour or exposed to the risk of being used for child labour. It also observes that, in its concluding observations in 2019 on the fourth periodic report of Ecuador, the Committee on Economic, Social and Cultural Rights expressed concern at the growth of the informal sector in both urban and rural areas and the lack of information on the effectiveness of the measures to combat child labour in the sector (E/C.12/ECU/CO/4, paragraph 35). The Committee therefore encourages the Government to continue its efforts to combat child labour in the context of the implementation of its programmes and projects with a view to the progressive eradication of work by girls, boys and young persons. Recalling that it is also possible to combat child labour in the informal economy through enforcement mechanisms, and particularly labour inspection, it also requests the Government to take the necessary measures to adapt and reinforce the labour inspection services and to ensure that inspectors receive appropriate training with a view to improving their capacity to detect cases of child labour. The Committee requests the Government to continue ensuring that persons who employ children in violation of the law are penalized.

Article 2(3). Age of completion of compulsory schooling. In its previous comments, the Committee requested the Government to continue its efforts to increase the school attendance rate of children under 15 years of age.

The Committee notes the interventions of the Ministry of Education for very young children through the Subsecretariat of Specialized and Inclusive Education and the National Directorate of Initial and Basic Education, which are executing the “Initial and basic education project” intended to increase the percentage of girls and boys under five years of age in programmes for very young children, while recognizing the specific socio-economic characteristics of families and communities. It also notes that this project has developed a model for support to children and young persons who are behind with their schooling with a view to catching up, so that they can be reintegrated into the education system, by eliminating or mitigating their delay and therefore preventing early school drop outs.

The Committee also notes the information provided by the Government in annex to its report on the coverage of basic initial and general education over the past four years. The Committee emphasizes that between 2017 and 2021, according to the statistics contained in annex to the Government’s report, the total number of students in basic initial and general education both fell. While noting the measures taken by the Government, the Committee requests it to continue its efforts to increase the school attendance rate of children under 15 years of age.

Article 8(2). Artistic performances. In its previous comments, the Committee once again requested the Government to provide information on the measures adopted to establish a system of individual permits for children under 15 years of age working in activities such as artistic performances, to limit the hours during which such employment or work is authorized and to prescribe the conditions of work and employment.

The Committee notes from the Government’s report that there are no regulations authorizing children under 15 years of age to work in artistic activities, but that a reform of the Labour Code could be envisaged to specify the type of work for children under 15 years of age, while safeguarding their integrity and their rights, as set out in the Constitution of the Republic of Ecuador and international human rights instruments. The Committee recalls that, in accordance with Article 8(1) of the Convention, the competent authority may allow exceptions to the minimum age for admission to employment or work of 15 years specified by Ecuador and, after consultation with the organizations of employers and workers concerned, authorize, in individual cases, participation in such activities as artistic performances. It also reminds the Government that, under the terms of Article 8(2) of the Convention, permits so granted shall limit the hours during which and prescribe the conditions in which such employment or work is allowed. The Committee therefore once again expresses the firm hope that the Government will take the necessary measures in the near future for the adoption of legislation establishing a system of individual permits for children under 15 years of age who work in activities such as artistic performances, and to limit the hours during which and prescribe the conditions in which such employment or work is allowed. It requests the Government to provide information in its next report on a potential reform of the Labour Code or on the other measures adopted.

Article 3 of the Convention. Worst forms of child labour. Clauses (a) and (b). Forced recruitment of children by armed groups and use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the Government’s reference in its report to the amendment to section 127 of the Penal Code (Official Journal 107-S of 24 December 2019), concerning persons who recruit children and young persons into armed groups, and section 172 of the Penal Code (Official Journal 107-S of 24 December 2019), concerning persons who use children for pornography in public performances.

Article 6. Programmes of action. In its previous comments, the Committee encouraged the Government to step up its efforts to adopt programmes for the elimination of child labour among street children, including those engaged in begging. It asked the Government to provide detailed information on the results achieved in the context of the National Development Plan 2013–17.

The Committee notes that one of the objectives of the Plan of Action against trafficking in persons 2019–30 (PACTA) is the elimination of child labour, hazardous work and begging, and the resolution of the situation of girls, boys and young persons on the streets. The Plan also incorporates a management model and a monitoring and evaluation system. The Committee requests the Government to provide detailed information on the results of action taken in the context of the PACTA monitoring and evaluation system for the elimination of child labour and begging among street children.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee encouraged the Government to continue its efforts to improve the education system by increasing the school attendance rate and reducing the school drop-out rate, especially at secondary level, in order to prevent the involvement of children in the worst forms of child labour.

The Committee notes the action taken by the Government in 2019–20 to keep students in the education system. This action enabled the development of skills and reinforcement of the capacity of pupils and teachers alike to progress in virtual learning environments, especially through: (i) training in science, technology, engineering, mathematics and business skills, from which a total of 2,510 technical teachers and 70,367 students of the technical baccalaureate benefited; (ii) the initiation of a total of 97,781 secondary pupils at the national level in the use of Microsoft Office 365 in the education system; and (iii) online training for a total of 146 teachers and institutional authorities in the country, focusing on interpersonal skills and business projects.

The Committee notes that in 2021 the National Directorate for the Baccalaureate, in the context of the project entitled “Reinforcing access, continuity and diplomas, with the focus on inclusion and lifespan”, implemented a service for reinforcing training for students from the first to the third year of the unified general baccalaureate, in order to support students in educational institutions who were at serious risk of dropping out. In view of the fact that education plays a key role in preventing the involvement of children in the worst forms of child labour, the Committee requests the Government to pursue its efforts to improve the functioning of the education system in the country, through measures aiming in particular at improving the school enrolment rate and reducing the drop-out rate in primary and secondary education. The Committee also requests the Government to provide detailed information and statistics on the school attendance and drop-out rates.

Clause (d). Identifying and reaching out to children at special risk. 1. Children of indigenous peoples. In its previous comments, the Committee encouraged the Government to reaffirm its commitment to working for the benefit of children of indigenous peoples by continuing to facilitate their access to the bilingual education system in order to prevent their engagement in the worst forms of child labour, as they are still the most vulnerable according to the statistics.

Noting the concerns expressed in the report of the Special Rapporteur on the rights of indigenous peoples to the United Nations Human Rights Council (A/HRC/42/37/Add.1), concerning the closure of bilingual intercultural community education centres, the Committee notes the revitalization of national languages through various government actions. One result of this is the fact that a total of 3,332 candidates passed the tests in the “I want to be a bilingual intercultural teacher” competition covering 13 out of 14 languages existing in the country. In addition, educational material and furniture have been distributed to 96 bilingual intercultural community education centres in 17 provinces. The Committee also highlights the efforts of the Bilingual Intercultural Education System Secretariat at the Ministry of Education (SESEIB) to revitalize the Atupama Sapara language and the research process to document the life cycle of ten indigenous peoples in Ecuador.

The Committee also notes the increase in the number of pupils in multicultural centres at the secondary level in 2021, namely a total of 19,355 pupils (compared with 17,753 in 2020 and 17,610 in 2019). However, it observes a drop in the number of pupils at the basic/elementary school level, namely a total of 115,195 pupils (compared with 115,371 in 2020 and 116,417 in 2019), and also a drop in the number of pupils at nursery level, namely a total of 8,762 pupils in 2021 (compared with 9,236 in 2020 and 9,440 in 2019). The Committee encourages the Government to reaffirm its commitment to the children of indigenous peoples by continuing to facilitate their access to the bilingual education system, in order to prevent their involvement in the worst forms of child labour, as they are still the most vulnerable according to the statistics.

2. Child domestic workers. In its previous comments, the Committee once again asked the Government to take effective and time-bound measures to protect children engaged in clandestine domestic work and to provide information in that regard in its next report.

The Committee notes the project of the Ministry of Labour entitled “Intersectoral strategy for the prevention of child labour and gender mainstreaming in addressing child labour”, which includes exploitation and paid or unpaid domestic work affecting girls, boys and young persons in Ecuador. The strategy’s plan of action includes: (i) the setting up of inter-institutional units for the prevention and elimination of child labour and the restoration of the rights of girls, boys and young persons; (ii) the provision of care for girls, boys and young persons engaged in work and for their families; (iii) the creation of an alert mechanism for cases involving girls, boys and young persons at risk of child labour and for detected cases of child labour; and (iv) the restoration of rights through the provision of psychological and emotional support for girls, boys and young persons involved in child labour.

The Committee also notes that, according to the Government’s report, an initiative is being evaluated and due to be approved with a view to providing a social protection service for households in situations of extreme vulnerability, in order to have a particular impact on paid or unpaid domestic work. This initiative is reportedly conducted through the collection of statistical information by the National Statistics and Census Institute (INEC) and the Ministry for Economic and Social Inclusion on the basis of information from households in situations of extreme vulnerability. The Committee requests the Government to communicate the detailed results obtained from the implementation of the “Intersectoral strategy for the prevention of child labour and gender mainstreaming in addressing child labour”, with the focus on developments in the situation of children engaged in clandestine domestic work. The Committee also requests the Government to provide INEC statistics on paid or unpaid domestic work in its next report.

Articles 3(a) and (b) and 7(1) of the Convention. Worst forms of child labour and penalties. Sale and trafficking of children and use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee duly notes the amendment to section 91 of the Basic Comprehensive Penal Code (COIP) in 2021, communicated by the Government as an appendix to its report. The amendment is concerned with the prohibition of the trafficking of persons for sexual exploitation, including forced prostitution, sex tourism and child pornography, and also for labour exploitation, including forced labour, debt bondage and child labour.

The Committee duly notes that the Government, in reply to its request to pursue efforts to ensure that the various ministries and entities responsible for monitoring the application of the COIP provisions collaborate in cases of trafficking of children, refers to: (i) the project for the elimination of child labour (PETI), which aims to prevent this practice in all its forms and encourages inter-sectoral coordination with a view to providing overall care for the victims of child labour. This collaboration includes the participation of the Ministry of Labour, the Ministry of the Interior, the Public Prosecutor, the Ministry for Economic and Social Inclusion, the Ministry of Education, the Ministry of Public Health and the Cantonal Rights Protection Councils; and (ii) the activities of the Inter-Institutional Coordinating Committee for the prevention of human trafficking and migrant smuggling and the protection of their victims; the purpose of this Committee is to supervise the application of the Human Mobility Act and monitor the issue of human trafficking, in accordance with Inter-Ministerial Decision No. 0010 of 2017. This Committee has technical working groups, in addition to the coordination team for the victims of trafficking and migrant smuggling, which includes the Technical Investigation and Justice Office, the Ministry of Foreign Affairs and Human Mobility and the Attorney-General’s Office, with a view to implementing joint actions against the trafficking of persons.

The Committee notes the action taken by the Government concerning the application of the provisions of the COIP relating to the trafficking of children: (i) 16 investigations into trafficking for sexual exploitation and one investigation into labour exploitation were conducted by the unit for the investigation of trafficking of persons and smuggling of migrants; (ii) six investigations into forced labour or other forms of labour exploitation and one investigation into the trafficking of persons, labour exploitation, servitude and child labour were conducted by the National Police Department specializing in matters relating to children and young persons (DINAPEN). The Committee requests the Government to provide detailed information on the prosecutions initiated, the convictions handed down and the penalties imposed as a result of these investigations.

Article 6. Programmes of action. Trafficking of children. In its previous comments, the Committee asked the Government to take all necessary measures to complete the process of adopting a new national plan of action to combat trafficking in persons and to provide detailed information in that regard.

The Committee notes with satisfaction Ministerial Decision No. 194 of 25 November 2019 adopting the Plan of Action against trafficking in persons 2019–30, published in Official Journal No. 349 of 14 February 2020, with details of the Plan appended to its report, including a conceptual and strategic framework, an analysis of the situation and a specific model for management, monitoring and evaluation of the actions to be taken.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour, removing them from these forms of labour and ensuring their rehabilitation and social integration. Trafficking of children. In its previous comments, the Committee asked the Government to continue its efforts to prevent the trafficking of children. It also asked the Government to provide information on the number of children removed from trafficking who have then been rehabilitated and socially integrated, disaggregated by age and gender.

The Committee notes Inter-institutional Decision No. 003 published in Official Journal special edition No. 425 of 10 March 2020, which adopts the protocol of actions to provide full care and protection for trafficking victims, incorporating a specific procedure vis-à-vis girls, boys and young persons. The Committee also notes the forthcoming interactive mapping of human trafficking and migrant smuggling by the Ministry of the Interior, supported by the International Organization for Migration (IOM) and the United Nations Office on Drugs and Crime (UNODC).

Furthermore, the Committee notes the statistical data on the trafficking of persons issued by the REGISTRATT system for the registration of victims of trafficking and migrant smuggling, which recorded 331 victims of trafficking, including 103 children under the age of 17 years, between 2017 and May 2021. It also notes the competencies of the Ministry for Economic and Social Inclusion with regard to providing care for girls, boys and young persons who are trafficking victims. The institutional care service caters for young persons between 12 and 17 years of age in two specialist centres, Casa Linda and Casa El Nido of the Alas de Colibrí foundation. A family reintegration programme catered for 19 girls and young persons in 2020 and 12 girls and young persons in 2019.

The Committee also notes the measures taken in 2019 in the context of the Human Mobility Act to direct the population in situations of human mobility towards social and legal services through the “host towns” project. This project, which exists in 14 locations, focuses on the protection of children, identifying and providing support for girls, boys and young persons who are the victims of violence, trafficking or exploitation. The Committee requests the Government to continue its efforts to combat the trafficking of children and to continue taking steps to protect child victims of trafficking. The Committee also requests the Government to provide information on the number of children, disaggregated by gender and age, who have been removed from trafficking and then rehabilitated and socially integrated.

Article 8. International cooperation and assistance. Trafficking of children. In its previous comments, the Committee asked the Government to indicate whether the exchange of information with Peru carried out within the framework of the agreement concluded in 2016 has provided information on the identification of, and penalties imposed on, perpetrators of trafficking of children and their networks. The Committee also asked the Government to continue its efforts to detect and intercept child victims of trafficking at the borders and to provide statistical data in its next report, disaggregated by gender and age, and information on the results achieved.

The Committee notes the bilateral cooperation activities between the Ministry of the Interior and Peru in 2020, aimed at prevention, investigation and victim protection in the context of human trafficking. In this regard, a number of activities have been implemented, including the 2020-21 roadmap on the trafficking of persons covering: (i) the updating and exchange of contact points in the institutions responsible for the provision of care, protection and reintegration services and/or for the repatriation of trafficking victims; and (ii) the exchange of instruments for the care, protection, reintegration and repatriation of victims of human trafficking and migrant smuggling. Furthermore, an online meeting on experiences relating to the prevention of cases of trafficking originating from the Internet was held with the collaboration of rapporteurs from the UNODC, the IOM and the International Centre for Missing and Exploited Children (ICMEC), with the participation of officials from both countries. The Committee also notes the campaign to combat the trafficking of persons between the two countries, aimed at formulating a communication strategy for the prevention of human trafficking which has an impact on vulnerable groups.

Lastly, the Committee notes, according to the Government’s report, that since the agreement is recent and in view of the situation arising from the COVID-19 pandemic, it has not been possible to provide additional data on the results of the action taken since 2020. The Committee requests the Government to continue its efforts to detect and intercept child victims of trafficking at the borders and to provide statistical data in its next report, disaggregated by gender and age, and information on the results achieved.

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee is examining the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019. The Committee also takes note of the technical assistance mission carried out at the Government’s request by the Office in December 2019 with a view to assisting the tripartite constituents in drawing up a road map to strengthen social dialogue and provide specific replies to the supervisory bodies’ comments.

The Committee notes the observations formulated by the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, received on 29 August 2019, as well as the Government’s replies to those, included in its supplementary report of 2020. It also notes the observations of PSI, received on 28 September 2020, and of the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT) and the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC), received on 1 October 2020, relating to the application of the Convention. The Committee requests the Government to provide its replies in that respect.

Tripartism and social dialogue in the context of the COVID-19 pandemic. The Committee notes the information provided by the Government in its supplementary report relating to the tripartite consultations held on 12 and 25 June 2020 within the framework of the National Labour and Wages Council (CNTS). The Government indicates that the objective of those consultations was to present the guidelines issued by the Ministry of Labour to mitigate the effects of the pandemic and to receive proposals from workers’ and employers’ representatives to maintain employment during the health emergency. The Government states that the members of the CNTS agreed on the establishment of a technical committee with the participation of two representatives of the employer sector and two representatives of the worker sector with a view to developing proposals to ensure the sustainability of employment and enterprises, and to address the situation facing the country as a result of the COVID 19 pandemic. The Committee notes, however, that PSI states in its observations that, since March 2020, under the decreed state of emergency, the Government has taken many administrative measures and passed various executive decrees without holding tripartite consultations on those. PSI reports that these measures have led to a regression in workers’ rights, especially those of public sector workers. In this respect, it refers, inter alia, to the introduction of the possibility of reducing the working hours and remuneration of public sector workers, and to the abolishment of various posts in that sector. PSI also refers to the adoption of the Organic Act on Humanitarian Support to combat the crisis resulting from COVID-19 and states that it introduces regressive reforms to the Labour Code. For their part, ASTAC and CEDOCUT report that the workers’ organizations were not consulted prior to the adoption, on 17 September 2020, of Ministerial Agreement No. MDT-2020-185, which contains a new method of calculating the basic unified wage and sets out the possibility of freezing it in 2021. ASTAC and CEDOCUT emphasize the need to adopt measures to guarantee the representation of the workers’ and employers’ sectors in the tripartite bodies, as well as their real and effective participation in the development of standards (see Paragraph 5(c) of Recommendation No. 152). In this context, the Committee recalls the broad guidance provided by international labour standards and encourages Member States to promote and participate in broader tripartite consultation and social dialogue as a solid basis for the preparation and implementation of effective responses to the deep-rooted socio-economic impact of the pandemic. The Committee requests the Government to send detailed and updated information on the tripartite consultations held regarding the measures taken to address the socio-economic impact of the pandemic. It also invites the Government to provide in its next report detailed information on measures taken to build the capacity of the constituents, and strengthen tripartite mechanisms and procedures, as well as on the challenges and good practices identified.

Articles 1, 2 and 3(1) of the Convention. Adequate procedures. Election of the representatives of the social partners to the National Labour and Wages Council (CNTS). In its previous comments, the Committee requested the Government to provide information on the consultations held to establish procedures which ensure effective tripartite consultations. It also requested the Government to send its comments on the observations made by PSI and UNE, in which they indicate that they are not recognized as representative organizations of the workers in the public sector. PSI and UNE also considered that the Government has opted systematically to disregard workers’ organizations that might be an obstacle to the implementation of its reforms but has intervened directly in the establishment of organizations that give legitimacy to its actions. PSI and UNE claimed that the Government had not held effective consultations with them and had not replied to the various proposals put forward concerning the creation of a forum for bipartite dialogue for the public sector incorporated in what was previously the National Labour Council. In its 2020 report, the Government indicates that, in accordance with Ministerial Agreement No. MDT-044 of 30 January 2016, amendments were made to section 10 of Ministerial Agreement No. MDT-2015-0240 of 20 October 2015 on the organization, composition and operation of the CNTS. Specifically, the phrase “trade union federations of legally recognized working persons” was replaced with “federations, confederations, fronts, organizations and/or unions of most representative working persons at the national level”. The Government indicates that the CNTS is thereby composed of those organizations of the most representative workers at the national level. In this regard, the Committee notes that, in its 2020 observations, PSI reports the lack of an adequate procedure and political will to determine the "most representative organizations", resulting, in practice, in the absence of an institution for tripartite consultation on international labour standards. Furthermore, UNE and PSI reiterate that they are still not recognized as representative organizations of the public sector, and nor are their affiliate organizations. In its reply, the Government indicates that the Ministry of Labour has a register of workers’ organizations, in which the level of representation is determined by the number of workers represented by that organization according to institutional records. The Committee recalls that the term “the most representative organizations of employers and workers” as provided for in Article 1 of the Convention “does not mean only the largest organization of employers and the largest organization of workers.” If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be “most representative organizations” for the purpose of the Convention. In such cases, governments should endeavour to secure an agreement of all the organizations concerned in establishing the consultative procedures (see 2000 General Survey on tripartite consultations, paragraph 34).

With regard to the procedure for selecting representatives to the CNTS, section 10(1) of the 2015 Ministerial Agreement provides that the Minister of Labour shall convene “the employers’ and workers’ organizations in order that, by means an elector appointed by each of them, the principal and alternate representatives of the CNTS may be elected.” If no agreement is reached, the Minister of Labour calls a second election. In this respect, the Committee notes that, PSI and UNE report that they did not obtain a response from the Government to the nomination they presented for the designation of new representatives of the CNTS in 2018. In this regard, the Government indicates that PSI has not been considered a member of the CNTS, as it does not meet the requirements established for membership. The Committee notes that ASTAC and CEDOCUT denounce the introduction of various legislative reforms in recent years that hinder the holding of tripartite consultations, and in particular the representation of workers’ organizations freely elected by their organizations, on various national tripartite bodies, such as the Board of Directors of the Ecuadorian Social Security Institute (IESS) in which the worker sector has not been represented since May 2018. The Committee also notes that ASTAC and CEDOCUT refer to the "Report on violations of trade union rights" of the International Trade Union Confederation (ITUC), which states that between 2013 and 2015 there was a fall in representation and a de-institutionalization of social dialogue and tripartism. In addition, the same report denounces the emergence of workers’ organizations parallel to the existing ones, and close to the Government. Lastly, the Committee notes that the road map presented by the technical assistance mission carried out in December 2019 proposed, as a central point, the inclusion of all representative trade union organizations in the CNTS. The Committee emphasizes that the participation of all the representative trade unions in the CNTS is a fundamental element for carrying out effective consultations and the application of the Convention in general. In the light of the observations of the workers’ organizations, the Committee requests the Government to adopt the measures necessary to ensure that all the country’s "most representative organizations" of employers and workers can participate in the CNTS and the other consultative bodies of a tripartite nature, such as the Board of Directors of the IESS, pursuant to Recommendation No. 152, Paragraph 5(c). The Committee also requests the Government to adopt the measures necessary to obtain the agreement of all organizations concerned, including workers’ organizations freely elected by their organizations’ members, with the establishment of the consultative procedures regarding the criteria used to determine representativeness among those organizations.

Article 5. Effective tripartite consultations. The Committee notes the information provided by the Government relating to tripartite consultations held on international labour standards between June 2019 and June 2020. The Government indicates that in February 2019 tripartite consultations were held, within the working groups established for this purpose, on comments to formulate on the draft Violence and Harassment Convention, 2019 (No. 190), and draft Violence and Harassment Recommendation, 2019 (No. 206), during the 108th Session of the International Labour Conference. The Government also reports that, based on the support expressed by the social partners on 19 September 2019, a technical report was sent to the Ministry of Foreign Relations and Human Mobility for the adoption of the measures necessary for the ratification of Convention No. 109 and Recommendation No. 206. In addition, the Government reports that various national institutions are participating in the preparation of a report on the potential ratification of the Protocol of 2014 to the Forced Labour Convention. The Government indicates that, once the report has been finalized, it will be sent to the National Assembly and other national bodies for discussion on potential ratification of the Protocol. The Committee notes, however, that the Government has not indicated whether there are plans to hold tripartite consultations relating to the potential ratification of the Protocol. With regard to the consultations held on reports on ratified Conventions, the Government indicates that once these reports are sent to the Office, they are brought to the attention of the employers’ and workers’ organizations, through the representatives of these sectors on the CNTS. In this respect, the Committee draws the Government’s attention to the fact that “in order to be ‘effective’, consultations must take place before final decisions are taken, irrespective of the nature or form of the procedures adopted… The effectiveness of consultations thus presupposes in practice that employers’ and workers’ representatives have all the necessary information far enough in advance to formulate their own opinions” (see the 2000 General Survey on tripartite consultation, paragraph 31).

The Committee notes, however, that UNE and PSI maintain that they were not consulted with regard to international labour standards or the Government’s request for technical assistance from the Office for the reform of the Labour Code, or other labour law reforms introduced within the CNTS. The Government indicates that during 2019 it held dialogues with workers’ organizations about the proposed labour reforms and their benefits. In addition, in its 2020 supplementary report, the Government states that on 25 May 2020, it held a meeting with various public sector workers’ organizations affiliated with PSI, at which matters such as the visit of the ILO technical mission to the country and the ratification process of Convention No. 190 were addressed. The Government reports tripartite consultations held throughout 2019 within the CNTS relating to the review and adoption of labour reforms and wage determination for 2020. It also refers to the establishment, under Ministerial Agreement No. MDT-2018-0008, of four standing social dialogue working groups, including the standing public sector working group. The Government indicates that, on 15 June 2018, PSI requested to participate in the public sector working group, which the Government acknowledged via official letter No. MDT-MDT-2018-0535 of 18 July 2018. The Committee requests the Government to continue providing up-to-date information indicating the specific content and the outcome of the tripartite consultations held on all issues relating to international labour standards covered by Article 5(1)(a) to (e) of the Convention. Furthermore, in the light of the observations of UNE and PSI, the Committee requests the Government to send detailed information on the manner in which it is ensured that all the most representative organizations participate in those consultations. The Committee also requests the Government to provide information on the consultations held with the social actors on ways to improve the functioning of the procedures required under the Convention, including the possibility of establishing a schedule for the preparation of reports far enough in advance to enable the social partners to formulate their contributions in this respect (Article 5(1)(d)).

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Legislation. Technical assistance. The Committee notes the Government’s indication that developments have been made in the national regulations concerning safety and health in port work with the publication of three bodies of legislation: standards regulating port services in Ecuador (Resolution No. MTOP-SPTM-2016-0060R), standards and requirements for the certification, registration and renewal of documents for seafarers and fishers working on board vessels flying the Ecuadorian flag and maritime-port personnel working in port facilities (Resolution No. MTOP-SPTM-2016-0102-R), and requirements for the recognition of centres for training and specialization of maritime port personnel (Resolution No. MTOP-SPTM-2016-0112-R). The Committee notes the Government’s intention to hold working groups with the institutions involved in the maritime and port sector, and in the fishing and aquaculture sector, aimed at pursuing the development and preparation of the document on the occupational safety and health regulations for each sector. The Committee requests the Government to continue providing information on any legislative or regulatory development related to the Convention.

Article 4(1)(f) of the Convention. Establishing proper procedures to deal with any emergency situations. The Committee notes the Government’s indication that the operating permits or authorizations being granted to the various port facilities include the protection plan and the contingency plan, which contain the appropriate procedures for emergency situations. The Government also indicates that each port facility must have an industrial safety office, a medical unit with outpatient services and an on-call doctor to ensure quick action in case of emergencies. The Committee requests the Government to provide examples of safety and emergency plans, or sets of practical recommendations for the emergency services in the port facilities.

Article 25(1), (2) and (3). Lifting appliances registers; Article 26. Mutual recognition; Article 27(2) and (3)(b) and (c). Functions of the competent authority with respect to lifting appliances; Article 28. Rigging plans; Article 31. Containers. The Committee notes the Government’s indication that, with respect to Article 25(1), (2) and (3), the Standardization Institute of Ecuador issued a diplomatic note informing port facilities of the State’s metrology laboratories competent in technical calibration standards. It also indicates that when the port facilities are granted the operation permit, they are informed of the obligation to register the lifting appliances and loose gear. With regards to the certificates granted or recognized as valid, it indicates that it is working to enforce the requirement on their submission during the safety inspections prior to granting the operating permits, as well as in the audits. The Government also indicates that all machines and materials come with their own certificates; that visual checks are carried out on an ongoing basis to enable the removal and replacement of the machines and materials if damage is detected; and that the stevedore thoroughly inspects all material when starting work. With regard to cranes and rigging, it indicates that endurance tests and inspections of the machines are carried out randomly. Lastly, the Government states that on a vessel where not all cargo is bulk solid or liquid, the cargo units and transport units are loaded, stowed and secured in accordance with the Cargo Securing Manual. While noting the clarifications provided, the Committee requests the Government to indicate the applicable textual provisions regarding the certification and operation of the lifting appliances and loose gear. It also requests the Government to keep it informed of any progress relating to action taken to ensure that certification has been carried out during the safety inspections prior to granting the operating permit. The Committee requests the Government to send the format of registers and certificates for lifting appliances and loose gear, rigging plans and reports of inspections conducted by the competent authority.

Article 41(a), (b) and (c). Institutional restructuring. Bodies concerned with dock work. Inspection. Penalties. The Committee notes the Government’s indication that the three resolutions above (MTOP-SPTM-2016-0060R, MTOP-SPTM-2016-0102-R and MTOP-SPTM-2016-0112-R) set out the National Authority’s responsibility for ensuring that all port facilities have adequate protection for the physical safety and protection of port operators. It indicates that port management inspections and audits are conducted on a six-monthly and annual basis, in accordance with the International Ship and Port-facility Security Code (ISPS). The Government also indicates that, in accordance with the standards regulating the port services in Ecuador, penalties extend to the suspension of the operating permit in the event of non-compliance with the obligations. Lastly, according to the Government, with regard to accidents or events as a result of non-conformity with these standards, the Port Authority is responsible for identifying and resolving issues related to technical maritime safety and protection, by issuing safety recommendations to prevent the recurrence of the causes of such accidents. Noting the information provided on the discussions held with actors in the port sector regarding the regulations on occupational health and safety, the Committee requests the Government to keep it informed of any clarification that these regulations, once adopted, may offer in relation to the occupational health and safety obligations for persons and bodies concerned with dock work, and in relation to inspections and penalties. Further, the Committee requests the Government to specify the graduation of penalties applicable in the event of non-compliance with the occupational safety and health obligations, indicating the relevant legislative or regulatory provisions.

Part V of the report form. Application in practice. The Committee notes the Government’s indication that from 2015 to the first half of 2019, 4,118 specialized occupational safety and health inspections were conducted nationally and that in the maritime and port sector no fines or penalties were reported for non-compliance with obligations and violations. The Committee also notes the Government’s indication in its supplementary information that in 2019 two inspections were conducted in a public undertaking associates with maritime transport, cabotage and cargo activities, covering 509 workers, and that in April 2020 an inspection was conducted in a private undertaking dedicated to activities related to water passenger transport, covering 151 workers. In addition, the Government indicates in its 2019 report that, through Ministerial Agreement No. SETED-MDT-2016-001-A of 2017, the Ministry of Labour issued the directive for compliance with the obligations of public and private employers, which sets out that the employer must complete, on an annual basis, the registration, approval, notification and/or reporting of labour obligations related to occupational safety and health on the online platform on the Ministry of Labour’s webpage (single labour system). It also indicates that since March 2018, the Risk Declaration application has been activated for the registration of activities pertaining to the identification of hazards, and evaluation and monitoring of occupational risks for each job. Between 2018 and June 2019, 15,171 public and private undertakings and public institutions completed this registration. Since 2019 the Occupational Health application has been activated for the registration of compliance indicators and activities concerning health surveillance, and prevention and promotion of occupational health. The Committee notes that, according to the supplementary information provided by the Government, up to October 2020, 72 port sector enterprises with 1,134 workers registered on the Ministry of Labour’s online platform. The Government also indicates that the General Directorate of Occupational Risks under the Ecuadorian Social Security Institute assesses, investigates and determines benefits concerning occupational accidents disease in the sector. It indicates in its 2019 report that it plans to hold working groups with the institutions involved in the maritime and port sector, and in the fishing and aquaculture sector, aimed at pursuing the development and preparation of the document on the occupational safety and health regulations for each sector. The Committee requests the Government to keep it informed of any development relating to the outcome of the discussions with actors in the port sector aimed at finalizing the occupational safety and health regulations of the sector. The Committee also requests the Government to continue providing detailed information on the application of the Convention, particularly a report on the use of the online platform to ensure the application of the provisions of the Convention regarding safety and health in ports. It requests the Government to provide information on the number of workers covered by the Convention, the number and nature of violations reported and the measures taken as a result, and the number and nature of occupational accidents and cases of occupational disease reported.

The Committee notes the observations made by the Association of Paid Household Workers (ATRH), received on 3 September 2018 and 29 September 2020. The Committee also notes the Government’s reply to these observations, received on 12 November 2020.

Impact of the COVID-19 pandemic. The Committee notes that the vulnerability of domestic workers to deficits in decent working and living conditions has been exacerbated at the global and national levels, as a result of the crisis caused by the COVID-19 pandemic. According to ILO estimates, in June 2020, 72.3 per cent of domestic workers worldwide had been significantly affected by the pandemic. The Committee further notes that the majority of domestic workers affected (76 per cent) work in the informal economy and, therefore, often do not have access to social security benefits. In this context, the Committee notes that, in its observations, the ATRH emphasizes that the working and living conditions of paid domestic workers in the country have been severely affected by the pandemic. In particular, the ATRH indicates that, faced with the need to keep their jobs, many domestic workers have been compelled to accept precarious working conditions (wage reductions, working days of more than eight hours, remaining at the workplace for more than 24 hours and increased workload). Furthermore, the ATRH reports that in many cases, domestic workers work without personal protective equipment (PPE) to protect them against possible infection with COVID-19. In this regard, the Committee emphasizes the importance of taking the necessary measures to ensure the security and safety of domestic workers (Article 13 of the Convention), particularly in the context of the pandemic, since they are front-line workers who are likely to be assigned responsibility for caring for the sick in the employer’s home. The ATRH further underscores the need for the Government to provide information on cases of violence against domestic workers identified during the pandemic. The Committee also notes the information provided by the Government in its reply of 2020 concerning the measures adopted in the context of the health emergency with a view to mitigating its impact on the working and living conditions of domestic workers. In this regard, the Government refers, inter alia, to the “Safe Paid Household Workers” and “Safe Work” information campaigns conducted in May and June 2020, as well as three virtual workshops on the labour standards applicable to domestic workers and the various complaints procedures available. The Government reports that 67 domestic workers members of the Single National Union of Paid Household Workers of Ecuador (SINUTRHE) and the National Union of Household and Allied Workers (UNTHA) participated in these workshops. Lastly, the Government indicates that during the pandemic, social dialogue with domestic workers’ organizations has been maintained through the “Inter-institutional committee for the support of the rights of paid household workers”. The Committee invites the Government to provide updated and detailed information on the impact of the pandemic on the application of the Convention, including information on the measures adopted or envisaged to mitigate the impact of the pandemic on decent living and working conditions for domestic workers in the country.

Article 1 of the Convention. Definition of domestic work and domestic worker. Occasional or sporadic domestic workers. In its previous comments, the Committee noted that section 262 of the Labour Code defines domestic service as “that which is provided, for remuneration, to a person seeking only to make use of the ongoing services of the worker on a not-for-profit basis in the personal or family residence, whether or not the worker resides in or outside the employer’s household”. In this regard, the Committee noted that the inclusion of the term “ongoing services” implies that discontinuous or sporadic domestic service is not considered to be domestic work. Moreover, it noted that section 17 of the Labour Code envisages continuous or discontinuous casual contracts, occasional contracts and seasonal contracts as contractual arrangements for a fixed period of time, while section 265 provides that the contract for domestic work is for an indefinite period. In this respect, the Committee recalled that, irrespective of the type of contract covering workers who provide domestic services, the definition of domestic worker set out in Article 1 of the Convention only excludes persons who perform domestic work occasionally or sporadically and not on an occupational basis. The Committee therefore requested the Government to indicate the manner in which it is ensured that persons who perform domestic work occasionally or sporadically, but who do so on an occupational basis, benefit from the guarantees set out in the Convention. The Committee notes that the Government has not provided information on this subject in its report. The Committee also notes that, in its observations, the ATRH indicates that the term “domestic work” has discriminatory connotations in the socio-cultural context of Ecuador and considers that the term “paid household work” is more appropriate to the objective of guaranteeing the dignity and respect for the rights of workers in the sector in the country. The Committee recalls that the International Labour Conference, during the preparatory work for the domestic work instruments, clarified that the expression “trabajadora o trabajador del hogar” (household worker) is synonymous with “domestic worker” (ILO: Provisional Record No. 15, International Labour Conference, 100th Session, Geneva, June 2011, para. 179). The Committee once again requests the Government to indicate the manner in which it is ensured that persons who perform domestic work occasionally or sporadically, but who do so on an occupational basis, are covered by the guarantees established in the Convention.

Article 3(2)(a) and (3). Freedom of association and effective recognition of the right to collective bargaining. In its previous comments, the Committee noted that, in its observations, the ATRH indicates that, due to the imposition of certain requirements for the establishment of unions (including the required number of workers (30) to establish associations), the right to organize of domestic workers is limited. The Committee referred previously to its 2015 observation on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it considered that this number was excessive and requested the Government to amend the relevant legislation. The Committee notes the discussion in the Committee on the Application of Standards on the application of Convention No. 87 at the 106th Session (2017) of the International Labour Conference. In particular, the Committee notes that the Committee on the Application of Standards requested the Government to 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 Convention No. 87. The Committee notes the Government’s indication in its report that section 440 of the Labour Code establishes the right to freedom of association of all workers and employers, without distinction whatsoever and without the requirement for prior authorization. It also reports the approval in 2016 of Ministerial Decision No. 142 which established SINUTRHE. However, the Committee notes that the ATRH complains of the persistence of the limitations referred to on the establishment of unions, including by domestic workers. The ATRH emphasizes that the requirement established under section 449 of the Labour Code that workers must be from the same undertaking prevents most domestic workers, who work in separate private homes and not for the same undertaking, from forming unions. In this regard, the Committee recalls that the specific characteristics of domestic work, which in many cases include a high degree of dependence on the employer (particularly in the case of migrant domestic workers) and the frequent isolation of domestic workers in their workplaces, are factors which make it particularly difficult for domestic workers to establish and join unions. The protection of freedom of association and the right to collective bargaining is therefore of special importance in this sector and it is necessary to adopt measures to guarantee these rights of domestic workers in both law and practice.

The Committee notes that, in its reply, the Government indicates that the specified requirements for the establishment of workers’ organizations and the conclusion of collective agreements are consistent with the principles of democracy, participation and transparency, since the benefits obtained through a collective agreement are applicable to all workers in the employing enterprise or institution. The Government indicates that, in practice, the statutes of those domestic workers’ organizations that comply with these requirements are approved and registered. According to information provided by the Directorate of Labour Organizations in the Ministry of Labour, there are three legally constituted domestic workers’ organizations in the country, namely: the National Association of Paid Household Workers (ASONAT); the Association of Paid Household Workers of Guayaquil; and SINUTRHE. Furthermore, the Government refers to activities carried out to promote the labour rights of domestic workers by the Directorate for Attention to Priority Groups in the Ministry of Labour, with the CARE Ecuador Foundation, with a view to providing training to SINUTRHE and UNTHA. Furthermore, on 15 November 2019, an inter-institutional letter of commitment to the establishment of the “Committee for the support of the rights of paid household workers” was signed by various stakeholders including the Ministry of Labour, the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL), SINUTHRE, UNTHA and the National Council for Gender Equality. The Government indicates that the objective of this committee is to establish a space for social dialogue and for the coordination of actions in favour of domestic workers. The ATRH, for its part, asserts that not all paid household workers’ organizations are equitably represented on the dialogue committees that have been established. The Committee refers once again to its comments on the application of Convention No. 87, and particularly those in which it trusted that the current legislative reform would contribute to the reform of the various provisions of the Labour Code to lower the minimum number of members required to establish workers’ organizations. The Committee also requests the Government to continue to provide detailed and updated information on the measures adopted or envisaged to promote and guarantee in practice the right of domestic workers to freedom of association and collective bargaining.

Articles 3(2)(c) and 4. Child labour. The Committee notes that the minimum age for domestic work is 15 years, in accordance with the provisions contained, among others, in section 262, third subsection, of the Labour Code and section 82, first subsection, of the Code of Children and Young Persons. Moreover, Ministerial Decision No. MDT-2015-0131 of the Ministry of Labour, issuing the list of hazardous types of work for young persons, explicitly prohibits domestic work by young persons who reside in the household. Section 5 of the Ministerial Decision also requires the progressive elimination of domestic work by young persons who do not reside in the household. The ATRH observes that, although the Ministerial Decision represents great progress in legal terms, it is necessary to adopt additional measures in collaboration with the social partners and to establish effective supervisory mechanisms through labour inspection and the imposition of adequate sanctions for violations of the legislation prohibiting child domestic work with a view to ensuring its elimination in practice. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring the abolition in practice of child domestic work. It also requests the Government to provide information on the impact of Ministerial Decision No. MDT-2015-0131 on the elimination of domestic work by young persons residing in the household. The Committee further requests the Government to provide information on the number of complaints of child domestic work reported, the penalties imposed on those responsible and the compensation granted to the victims.

Article 5. Abuse, harassment and violence. The Committee notes the Government’s information that Article 331(2) of the Constitution of the Republic of Ecuador prohibits any form of discrimination, harassment or acts of violence of any type, whether direct or indirect, affecting women at work. The Government adds that section 166 of the Basic Comprehensive Penal Code (COIP) criminalizes sexual harassment. In 2017, the Act was adopted to prevent and eradicate violence against women, which includes the workplace among the areas in which violence is committed against women. In particular, section 12(3) of the Act provides that the working environment “includes the labour context in which the right to work is exercised and where productive activities are undertaken, in which violence is committed by persons who have a labour relation or work with the victim, irrespective of the hierarchical relationship. It includes: making recruitment or job retention conditional upon favours of a sexual nature; the refusal to recruit the victim or agree to her retention in work or general conditions of work; public discredit through the work performed and denial of access to equal remuneration for equal work or functions: and the refusal to grant women time off for pregnancy and nursing.” The Act sets out protection measures in cases of violence, which can be applied by the courts, and measures of an administrative nature which can be ordered by Cantonal Boards. The Committee notes that, according to the statistics of the Office of the Public Defender, of the total of 300 investigations completed, 65 per cent were related to violence against women domestic workers. Nevertheless, the Committee notes that specific measures have not been adopted to ensure in practice the effective protection of domestic workers, both women and men, against any form of abuse, harassment and violence. In this regard, the ATRH emphasizes the need to set up a direct telephone line to enable domestic workers to make complaints in cases of abuse and ill-treatment with a view to obtaining a response and an immediate solution from the competent authority. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring in practice the effective protection of domestic workers against any form of abuse, harassment or violence. The Committee also requests the Government to provide statistical data, disaggregated by sex, on the number of complaints received of harassment, abuse and violence in the context of domestic work, which have been made to the various competent bodies, their outcome, the penalties imposed on those responsible and the compensation granted.

Articles 6 and 9. Domestic workers who reside in the household. Decent living conditions that respect their privacy. Freedom of movement during periods of daily and weekly rest or annual leave. In reply to the Committee’s previous comments, the Government indicates that section 268 of the Labour Code provides that “in addition to the remuneration determined, it is the duty of the employer to provide the domestic worker with food and accommodation, unless agreed to the contrary …”. The Committee notes that the ATRH emphasizes the importance of domestic workers having private accommodation in order to prevent acts of violence, harassment, physical attacks and sexual harassment by the employer or persons close to the employer. The ATRH adds that measures must be adopted with a view to ensuring that the employer provides reasonable notice for domestic workers in respect of the termination of the employment relationship for faults that are not serious, so that they can seek new employment and/or accommodation, in accordance with Paragraph 18 of Recommendation No. 201. Finally, the Committee notes that the Government has not provided information on the manner in which the freedom of movement of domestic workers is ensured during periods of daily and weekly rest or annual leave. The Committee requests the Government to adopt the necessary measures with a view to ensuring that the accommodation that the employer shall provide to domestic workers under the terms of section 268 of the Labour Code includes at least: a separate, private room that is suitably furnished, adequately ventilated and equipped with a lock; access to suitable private sanitary facilities; adequate lighting; and, as appropriate, heating and air conditioning in keeping with prevailing conditions within the household, in accordance with Paragraph 17(a) to (c) of Recommendation No. 201. The Committee also requests the Government to take the necessary measures to ensure that domestic workers whose employment relationship is being terminated for faults that are not serious have reasonable notice to seek new employment and/or accommodation. Furthermore, it requests the Government to indicate the manner in which it is ensured that domestic workers who reside in the household are not obliged to remain in the household or with household members during the periods of rest recognized in the legislation.

Article 7. Easily understandable information on terms and conditions of employment. In its previous comments, the Committee noted the Government’s indication that a draft ministerial decision was being drawn up which would contain a chapter on the minimum provisions to be contained in employment contracts in the domestic work sector. The Committee trusted that the draft decision would duly take into account the provisions of Article 7 of the Convention. However, the Committee notes that the Government has not indicated whether the draft ministerial decision has been adopted. Furthermore, the Committee notes that section 262(2) of the Labour Code provides that matters not covered in the contract shall be determined in accordance with local custom. In this regard, the Committee recalls that Article 7 of the Convention provides that measures shall be taken to ensure that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner and preferably, where possible, through written contracts in accordance with national laws, regulations or collective agreements. Accordingly, the Convention does not envisage local custom as a source of legal provisions governing the terms and conditions of employment of domestic workers.

The Committee also notes that, in its observations, the ATRH indicates that many paid household workers are without contracts. The Committee notes the various measures proposed by the ATRH with a view to ensuring that domestic workers understand their terms and conditions of employment. Among other measures, the ATRH emphasizes the need to establish the requirement to register contracts of employment with the competent authority. It adds that it is necessary to conduct awareness raising and information campaigns in a language and format that is easily understandable for all paid household workers concerning their rights, as well as complaint procedures and the legal remedies to which they have access. Furthermore, the ATRH refers to the model contracts for full- and part-time remunerated household work that are available on the website of the Ministry of Labour. The ATRH complains that these models do not include information on the specific activities to be performed by the domestic worker, which may give rise to abuse in practice, and underscores the need to establish different categories of activity (such as caring activities, or cleaning and maintenance activities). Moreover, it emphasizes the need to amend various clauses in the model contract, such as by introducing the obligation to specify the place of work and possible changes thereto. In its reply, the Government indicates that these models were developed in the context of the “Inter-institutional committee for the support of the rights of paid household workers” with the participation and input of SINUTHRE and UNTHA. The Government adds that measures are being taken with a view to amending these model contracts. The Government reports that in 2020, there are 67,161 registered domestic employment contracts. Furthermore, the Government indicates that on 30 September and 1 October 2020, online training sessions for paid household workers and employers, respectively, were held, on the rights and duties of both parties in relation to matters such as the minimum wage, pay for additional hours and overtime and holiday pay, as well as on the implementation of the new Basic Act on Humanitarian Support to Combat the COVID-19 Health Crisis. In addition, the Government refers to the participation of 130 women in training courses under the category “Specialist home and building maintenance worker – cleaning and disinfection”, organized by the Ecuadorian Vocational Training Service (SECAP) with a view to professionalizing domestic work. The Committee requests the Government to adopt the necessary measures with a view to ensuring that domestic workers are informed of their terms and conditions of employment in an appropriate, verifiable and easily understandable manner. In this regard, the Committee requests the Government to adopt the necessary measures with a view to amending the model contracts of employment established for domestic work, in accordance with Paragraph 6 of Recommendation No. 201, and to provide a copy thereof to the ILO when they have been adopted. It also requests the Government to take the necessary measures to amend section 262(2) of the Labour Code to ensure that the terms and conditions of employment of domestic workers are always established in accordance with the national legislation or collective agreements.

Article 8. Migrant domestic workers. The Committee notes that the ATRH emphasizes the need to take measures with a view to ensuring equality of opportunity and the effective protection of migrant domestic workers, including measures to ensure that they are aware of their rights. In its reply, the Government indicates that, in accordance with article 9 of the national Constitution, foreigners enjoy the same rights and duties as nationals. The Government refers to the adoption of measures with a view to guaranteeing the rights of migrant workers in practice, such as the issuance of employment authorizations and certificates free of charge in order to enable foreigners to work in the public sector. The Committee notes, nevertheless, that the Government does not provide specific information on migrant domestic workers. The Committee therefore requests the Government to provide detailed and updated information on the measures taken or envisaged with a view to ensuring compliance in practice with this Article of the Convention.

Article 9(c). Right of domestic workers to keep in their possession their travel and identity documents. With reference to migrant workers, the Government indicates that section 159 of the Basic Act on Human Mobility prohibits the retention of the travel documents of any person who enters, leaves or remains on the territory of Ecuador, except in cases when they are demonstrated to be false or void. Section 13 of the Act defines travel documents as those documents acceptable as proof of identity of persons entering a country other than their own. However, the Committee notes that the Government has not provided information on the manner in which it is ensured that national domestic workers have the right to keep in their possession their travel and identity documents, nor the manner in which it is ensured that migrant domestic workers have the right not only to keep in their possession their travel documents, but also their identity documents. The Committee therefore requests the Government to provide detailed information on the manner in which it is ensured in practice that all domestic workers, including national domestic workers, have the right to keep in their possession their travel and identity documents.

Article 11. Minimum wage coverage. The Committee notes that, under the terms of the Minimum Wage Act, the minimum wage of domestic workers has been brought into line with that of other employed persons since 2010. Between 2012 and 2018, the minimum wage was increased from US$275 to US$386 for 40 hours of work a week. However, the ATRH indicates that, although the law requires the payment of the minimum wage to paid household workers, in practice it is necessary to provide guidance and education to employers and workers with a view to ensuring that employers comply with the legal requirement and workers demand the labour rights. The Committee requests the Government to provide detailed and updated information on the measures adopted with a view to ensuring in practice that domestic workers are covered by the established minimum wage. It also requests the Government to provide statistical data, disaggregated by sex and age, on wage trends for domestic workers. The Committee further requests the Government to provide copies of court rulings in cases of failure to comply with the requirement for employers to pay domestic workers the minimum wage.

Article 13. Effective measures to ensure occupational safety and health. In reply to the Committee’s previous comments, the Government indicates that on 13 September 2017 the Directorate of Occupational Safety and Health and Comprehensive Hazard Management participated in an inter-institutional meeting, together with the SINUTRHE, in which a road map was approved for action in relation to occupational safety and health in the domestic work sector. However, the Government adds that it has not been possible to implement the road map due to disagreements within the SINUTRHE. The Government adds that the Directorate of Occupational Safety and Health and Comprehensive Hazard Management is gathering information on good practices in other countries with a view to providing guidance on occupational safety and health for domestic workers. In its observations, the ATRH indicates that it is necessary to adopt specific legislation, conduct awareness-raising campaigns and develop an information guide on the risks faced by paid household workers in the workplace. In this regard, the Government reports that in June 2020, the “Guide for the prevention of occupational risks for men and women domestic workers”, which is available on the web page of the Ministry of Labour, was published. The Committee requests the Government to continue to provide detailed and updated information on the measures adopted or envisaged with a view to ensuring the occupational safety and health of this category of workers, with due regard for the specific characteristics of domestic work, in accordance with the Convention.

Article 14. Access to social security. The Government indicates that Article 369 of the Constitution of the Republic of Ecuador provides that compulsory universal insurance shall be extended to the whole of the urban and rural population, irrespective of their employment situation. Section 242 of the Basic Comprehensive Criminal Code (COIP) establishes the penalty of imprisonment for between one and three years for the unlawful retention of social security contributions. Section 244 of the COIP also provides for prison sentences of between three and seven days for employers who do not register their workers with the compulsory social security scheme. The Committee notes that, based on data from the Ecuadorian Social Security Institute (IESS), in February 2018 there were 61,592 domestic workers registered, 88 per cent of whom were women. However, the ATRH indicates that the number of paid household workers who are not registered with the IESS is very high in the country. In this regard, the ATRH considers that measures need to be adopted to control compliance by employers with the requirement to register their domestic workers with the IESS. The ATRH states that there is a need to adopt guidelines establishing equal conditions for domestic workers in comparison with other workers with regard to health coverage and maternity care. In this regard, the Government indicates that domestic workers are entitled to the same rights as those established by law for other workers with regard to maternity periods and maternity care. The Committee requests the Government to provide detailed information on the measures adopted or envisaged with a view to promoting the registration of domestic workers with the social security system, such as information campaigns on the right of domestic workers to have access to social security and inspection campaigns to supervise compliance with the obligation for employers to register their domestic workers with the Ecuadorian Social Security Institute. The Committee also requests the Government to provide updated statistical data, disaggregated by sex and age, on the number of domestic workers registered with the Ecuadorian Social Security Institute.

Article 15(1)(b). Machinery and procedures for the investigation of fraudulent practices by private employment agencies. In its previous comments, the Committee noted the information provided by the Government concerning a meeting of a policy forum on the rights of paid household workers, attended by representatives of the Government and the ATRH, in which it was decided to review the regulations on the functioning of private employment agencies with a view to increasing control over them. The Committee requested the Government to provide information on any developments in this regard. However, the Committee notes that the Government has not provided information on this subject. The ATRH indicates that such control is difficult in practice, as there are no precise data on the number of employment agencies operating in the country, or the number of paid household workers who make use of their services. In its reply, the Government indicates that the Ministry of Labour is exploring the possibility of issuing legislation that would allow further regulation of employment agencies with the aim of ensuring compliance with labour legislation with regard to conditions of work, including remuneration, benefits, bonuses and allowances. Lastly, the Committee notes that the ATRH proposes to develop a database containing information about its members as a mechanism for validating their skills and recommending them as specialized workers. For its part, the Government indicates that the adoption of legislation enabling workers’ organizations to create such a database is feasible. The Committee once again requests the Government to provide information on the measures adopted or envisaged to review, in collaboration with the social partners, the regulations on the functioning of private employment agencies with a view to exercising increased and effective control over them in the domestic work sector.

Article 16. Access to justice. In its observations, the ATRH emphasizes the low number of complaints made to the courts by domestic workers due to their lack of knowledge of their rights and the lack of resources to be able to have access to justice. It adds that, although following the adoption of the General Basic Procedural Code, more flexible procedures have been established for the application of justice, it is also necessary to make the procedures followed by the administrative labour authorities more flexible, as they are the first authorities to receive complaints and denunciations before court proceedings are initiated. In this respect, the ATRH highlights the need to develop, in collaboration with domestic workers’ organizations, advisory schemes for paid household workers, in particular those with a low level of education, in a format and language that they can understand. In this regard, the Government refers to the publication in February 2019, with the support of the “Inter-institutional committee for the support of the rights of paid household workers”, of the “Guide to Support for Paid Household Workers in case of Violation of Rights, Harassment and Violence in the Workplace”. The Government indicates that this publication, which is available on the web page of the Ministry of Labour, is a tool for the promotion of labour rights and for the identification of cases of violence and harassment in the workplace. Furthermore, the Government reports that a mobile application, “TRH Unidas” (Paid Household Workers United), has been developed as a free tool providing information on domestic workers’ labour rights, including on guidelines for the identification of cases of violence and the various entities providing administrative and legal support. In addition, it argues that there is a need for a mediation programme that includes paid household workers. In this regard, the Government indicates that domestic workers, like other workers, can access the alternative conflict management services of the Directorate of Mediation in the Ministry of Labour. The Committee requests the Government to specify the various remedies to which domestic workers have access and to indicate the measures adopted or envisaged by the Government to facilitate the access to justice of men and women domestic workers in relation to the various remedies. It further requests the Government to continue to provide information on the established legal advisory mechanisms and on the available procedures and mechanisms accessible by and in a format or language understandable to all domestic workers.

Article 17(1). Complaint mechanisms. The Committee notes that, according to the information compiled by the regional departments of the Ministry of Labour, between 2016 and May 2018, a total of 1,387 complaints were made concerning violations of the rights of domestic workers. Most of the complaints alleged the failure to pay wages, non-compliance with the requirement of registration with the IESS or unjustified dismissal. The Committee also notes that the ATRH reiterates its previous observations, in which it emphasized the need to guarantee flexible and easily understandable complaint mechanisms, to provide competent legal advice in places where complaints are lodged and to build the capacities of the officials responsible for receiving complaints and of inspectors on the specific characteristics of the sector, with a view to ensuring compliance with the labour laws established for this category of workers. The Committee further notes the reports by the ATRH of the persistent difficulties faced by domestic workers in lodging complaints. Among other obstacles, the ATRH explains that, when lodging complaints, domestic workers are requested to provide information that is sometimes not within their knowledge, such as the email address and the work telephone number and address of their employer. In its reply, the Government indicates that, in the context of the “Inter-institutional committee for the support of the rights of paid household workers”, a protocol for complaints for domestic workers is to be developed, with a view to providing information on the measures that they can take in the event that their rights are violated. The Committee requests the Government to provide detailed and updated information on the measures adopted or envisaged to ensure the access of domestic workers to effective complaint mechanisms, including legal advice and information on accessible procedures and mechanisms in a form and language that is easily understandable by all domestic workers, including indigenous domestic workers. The Committee also requests the Government to provide information on the number of complaints made by domestic workers to the various competent bodies, their outcome, the penalties imposed on those responsible and the compensation granted in cases of violations. It further requests the Government to send a copy of the complaints protocol for domestic workers, once this is available.

Article 17(2) and (3). Labour inspection and penalties. Access to household premises. In its previous comments, the Committee noted the wide-ranging awareness-raising and information campaigns undertaken, as well as the home inspections undertaken in various urban areas with a view to informing domestic workers of their labour rights. It also noted the observations of the ATRH, in which it emphasized the need to: establish mechanisms to monitor the payment of holidays and compliance with the payment of minimum wages (particularly in provincial rural areas); strengthen registration and notification procedures for occupational accidents and diseases in paid household work; and enforce the compensation process in the event of occupational accidents and diseases. In this regard, the Committee requested the Government to provide information on the impact of the awareness-raising and information campaigns and on the planned follow-up action. The Government indicates that labour inspections in the domestic work sector are conducted as a result of complaints by workers to the provincial departments of labour and the public service (section 545 of the Labour Code). The Government adds that only comprehensive inspections are carried out at the initiative of the inspection services. The Committee notes the information provided by the Government in its reply of 2020 with regard to the procedure followed by the labour inspectorate when a complaint is submitted, as well as the procedure established for those cases in which a violation by the employer is established. In this regard, the ATRH reiterates its earlier observations and emphasizes the need to increase the number of comprehensive labour inspections in the domestic work sector. The ATRH also complains that, during labour inspections in the paid household work sector, inspectors only meet the employer. The ATRH emphasizes that this leaves domestic workers in a defenceless position and places their employment situation at risk as, in many cases, when complaints are made, employers engage in reprisals against their workers. The ATRH also denounces the fact that training, supervision and evaluation measures have not been implemented for labour inspectors engaged in inspections in the domestic work sector with a view to eliminating potential discriminatory approaches. The ATRH indicates that, despite its participation with the Government in the preparation of a pilot project for inspections in the paid household work sector, it has not yet been implemented. Lastly, the Committee notes that the Government reports that, between 2018 and September 2020, 766 inspections were carried out in the domestic work sector, of which 714 were closed and 35 are pending; in 17 cases, a fine was imposed on the employer (on grounds such as absence of contract, non-affiliation with the IESS or non-payment of additional hours and overtime). In this regard, the ATRH complains that the fines imposed on employers are insufficient to ensure that they fulfil their obligations in practice. The Committee requests the Government to provide updated and detailed information on the measures adopted or envisaged with a view to giving effect in practice to labour inspection measures, having due regard for the special characteristics of domestic work, in accordance with the national legislation. In this regard, while noting the complexity of labour inspection in the private residences in which domestic workers are engaged, the Committee reminds the Government of the possibility of requesting ILO technical assistance in this respect, including with regard to the development or implementation of appropriate measures to protect domestic workers from possible reprisals and to address the concerns expressed by the workers’ organization. The Committee also requests the Government to provide updated information on the number and type of inspections in the sector (complaints-driven and comprehensive inspections), the number of infringements detected and the penalties imposed.

Comments adopted by the CEACR: Ecuador

Adopted by the CEACR in 2022

C029 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C105 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2021

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C088 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C131 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C144 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C152 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C189 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Comments adopted by the CEACR: Ecuador

Display the list by:

Adopted by the CEACR in 2022

C029 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C105 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2021

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C088 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C131 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Adopted by the CEACR in 2020

C144 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C152 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C189 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)