Definitive Report - Report No 78, 1965

Case No 316 (Ecuador) - Complaint date: 19-NOV-62 - Closed

1. 98. This case was examined by the Committee at its 35th Session in November 1963, following which the Committee submitted its final conclusions to the Governing Body in paragraphs 84-101 of its 73rd Report, which was approved by the Governing Body at the beginning of its 159th Session (June-July 1964). Paragraph 101 of this report, which contains the Committee's recommendations to the Governing Body, is couched in the following terms:
2. 101. .... In the circumstances the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to the desirability of introducing, for cases in which there is controversy as to whether a representative trade union organisation enjoys majority support, a system embodying the necessary safeguards to ensure that all the workers concerned will be able to express their views freely and giving effect to the principle that the certification of the representative organisation should be by an independent body and that the organisation should be chosen by a majority vote of the employees in the unit concerned;
   • (b) to suggest to the Government that it might care to reconsider the position of the Works Council for the State Railways in the light of the foregoing recommendation; and
   • (c) to draw the attention of the Government to the importance which the Governing Body has always attached to the principles embodied in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment by reason of union membership or because of participation in union activities, and that their organisations should enjoy adequate protection against acts of interference by employers.
3. 99. When these conclusions had been approved by the Governing Body they were communicated to the Government in a letter dated 22 June 1964. In its reply dated 16 July 1964 the Government made the following comments on these conclusions:
   • In respect of paragraph 101, approved by the Governing Body at its 159th Session, the Government of Ecuador wishes to make the following remarks:
4. 1. In disputes concerning the majority character of trade unions the procedure is to abide by the will of the majority as freely expressed to the labour authorities after supplying evidence of identity and function.
5. 2. The status of the Works Council of State Railway Workers was examined and settled several years ago and therefore the present Government did not share in or bear responsibility for the decision. No petition has been received by the Government for revision of this case.
6. 3. The right to organise and bargain collectively is given full effect not merely in theory but also in practice. Throughout the country the labour authorities have encouraged the signing of collective agreements as a means of promoting understanding and co-operation between workers and employers. Since July 1963 more than ten agreements have been signed, protecting thousands of workers in such important branches as the sugar and petroleum industries and also employees of the Municipality of Ambato.
   • I would be grateful if you would bring these details to the attention of the Committee on Freedom of Association and the Governing Body.
7. 100. In view of this communication from the Government the Committee considers that it should once more examine its observations in subparagraphs (a) and (b) of paragraph 101 of its 73rd Report quoted earlier.

A. A. The complainants' allegations

1. 101. The Committee recalls that in the present case the Ecuadorian Confederation of Catholic Workers, Employees and Craftsmen (C.E.D.O.C.) complained that the Ministry of Social Welfare and Labour had refused to approve the by-laws of the Works Council set up by employees of the State Railways, despite the fact that, according to the complainants, the majority of the workers had in fact signed a declaration of support for the Council. The Government answered that it was unable to approve these by-laws because there had never been any meeting with sufficient unity to be described as a founders' meeting which must exist before a works council could be constituted. Accordingly the Government stated that it had appointed a committee to tour the railways and ask the workers whether they belonged to the Works Council or the Ecuadorian Railwaymen's Union, which was already in existence and opposed recognition of the Council. According to the Government this committee was unable to confirm the Council's claim to have a majority.
2. 102. As regards the formalities needed to constitute a works council, i.e. whether it was sufficient to obtain the signatures of the workers or whether it was necessary to call a founders' meeting, there appeared to be no definite rule with regard to the procedure to be followed in order to determine whether a works council had majority support when the undertaking was of the type involved in this case and when such majority support was questioned. On the one hand the presidential decision refusing to approve the by-laws seemed to accept the system of signatures adopted by the Works Council and based the refusal on the report of the committee of inquiry, according to which only a minority of the workers stated that they were in favour of the Works Council; and on the other hand the Government, in its reply, gave as a ground for refusing approval that there never was a genuine founders' meeting reflecting unity of action, which was an essential feature of a founders' meeting in the proper sense.
3. 103. As regards the measures taken there appeared to be no agreement with regard to the total number of workers on the railways or the number of members or supporters that could be claimed by either body. The Committee likewise observed that in no case did all the workers on the railways seem to have been questioned and that no figures had been collected that would allow a final judgment to be reached on the number of members of either organisation. On the contrary the procedure used to check whether the Works Council did or did not have majority support seemed to have given rise to acts of discrimination and interference by the management and at any rate to have made it difficult for the workers to express their views freely.
4. 104. In view of these considerations the Committee observed that there was a series of discrepancies with regard to the legal interpretation of the procedure applicable to the formation of a majority organisation and, bearing in mind the fact that in this case problems had arisen concerning the freedom of trade unionists to express their preference for one or other of the organisations, the Committee recommended that the Government's attention should be called to the desirability of introducing a system embodying the necessary safeguards to ensure that all the workers concerned would be able to express their views freely, that certification should be by an independent body and that the organisation should be chosen by a majority vote.
5. 105. In its letter dated 16 July 1964 the Government stated that when any dispute arose concerning the majority character of a trade union organisation the problem was settled in accordance with the wishes of the majority as freely expressed to the labour authorities after production of evidence as to identity and function.

B. B. The Committee's conclusions

1. 106. The Committee considers that, in view of its experience in dealing with this case involving the State Railways, the Government's observations do not contain any new points of substance which could lead it to change the opinion expressed in paragraph 101 (a) of its 73rd Report cited above, and therefore recommends the Governing Body to take note of the Government's observations on this point and at the same time to reiterate its earlier recommendations.
2. 107. As regards the suggestion in paragraph 101 (b) of its 73rd Report that the Government should re-examine the position of the Works Council for the State Railways in the light of the recommendation made in paragraph 101 (a) thereof, the Government states that the position was settled several years ago and that it did not share in or bear responsibility for the decision. It adds that it has not received any petition to revise this case.
3. 108. In earlier cases the Committee has taken the view, when it has had before it accusations relating to violations of trade union rights by a former government, that though the government in power could obviously not be held responsible for events which took place under its predecessor, it is clearly responsible for any continuing consequences which they may have had since its accession to power.
4. 109. Having therefore already suggested to the Government that it re-examine the position with regard to the Works Council for the State Railways, the Committee considers that it is for the Government to decide whether or not it should act on this suggestion in view of the arguments put forward by the Committee and the circumstances of the case. Accordingly the Committee can only recommend the Governing Body to take note of the Government's statements, while at the same time reaffirming the principle set forth in the preceding paragraph.

The Committee's recommendations

1. 110. In these circumstances the Committee recommends the Governing Body:
   • (a) to take note of the information now furnished by the Government with respect to the determination of majority organisations and to decide that it contains no new elements which call for a modification of the conclusions contained in paragraph 101(a) of the 73rd Report of the Committee cited in paragraph 98 above;
   • (b) to take note, while reaffirming the principle set forth in paragraph 108 above, of the Government's statement that the position of the Works Council for the State Railways was settled several years ago and that it did not share in or bear responsibility for the decision.