Report in which the committee requests to be kept informed of development - Report No 78, 1965

Case No 364 (Ecuador) - Complaint date: 16-OCT-63 - Closed

1. 62. The Committee considered the above case at its session of June 1964 and submitted an interim report (paras. 334-353 of its 76th Report). This was adopted by the Governing Body at its 159th Session in June-July 1964. The allegations which remained pending related to the detention of trade union leaders, the dismissal of workers and trade unionists and abolition of the right to strike.

A. A. The complainants' allegations

• Allegations relating to the Detention of Trade Union Leaders
  63. 63 The complainants alleged in their communication of 6 October 1963 that the principal officers of the Executive Committee of the Confederation of Workers of Ecuador and of the Provincial Federations had been arbitrarily arrested without charge. They mentioned a number of leaders who were in that situation and also stated that other craft and rural trade union leaders had been arrested, as well as many legal advisers to the trade union movement.
  64. 64 In its reply of 28 February 1964 the Government explained that all the detained persons mentioned by the World Federation of Trade Unions were identified as terrorist elements who had carried out attacks against the security of the State; they had committed what were criminal offences under Ecuadorian penal law, and proceedings were being taken against them.
  65. 65 Following its usual practice in such cases the Committee recommended the Governing Body to request the Government to communicate the result of the legal proceedings instituted in the national courts of law against the persons mentioned and, in particular, the text of the judgments given and their grounds; and, pending the receipt of such information, to postpone examination of this aspect of the case.
  66. 66 In the light of the requests thus made the Government sent its observations in a further communication dated 13 October 1964, stating that the only persons presently under arrest were Messrs. Telmo Hidalgo, Pedro Saad and Honorio Villacis, who had conspired against the established régime and committed acts of terrorism, thus disturbing public peace and quiet.
  67. 67 The Committee observes from the Government's reply that none of the names cited by the complainants coincides with those of the three persons still under arrest; and that apparently the persons in the first group have been released. In these circumstances the Committee recommends the Governing Body to note that, according to the information communicated by the Government, all the persons mentioned by the complainants as having been arrested are at liberty once more, and to decide that this aspect of the case does not call for further examination.
• Allegations referring to the Dismissal of Workers and Trade Unionists
  68. 68 The complainants alleged that the Military Government (Junta Militar de Gobierno) had allowed the employers to dismiss workers and that it was sufficient for a trade union leader or worker to be accused of communism to be dismissed, in contravention of the provisions governing employment security in the Labour Code and collective agreements. They gave numbers of workers who, they said, had been thus dismissed by various private, state and municipal undertakings.
  69. 69 The Government repudiated this allegation, stating that it had acted to prevent a mass dismissal of workers, since on the very day on which the Junta assumed power it issued a communiqué prohibiting such acts and this was subsequently confirmed by Decree No. 564 of 27 September 1963. The Government also explained that several public establishments had been purged of extremist agents who never, in fact, were workers but devoted their time to propaganda and sabotage in different centres of employment and obeyed political instructions.
  70. 70 When examining these matters the Committee considered that there could have been discrimination against certain trade unionists as such, even though some other reason had been invoked for dismissing them. The Committee therefore recommended the Governing Body to request the Government to explain how the provisions contained in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), to the effect that workers should enjoy adequate protection against any acts calculated to cause their dismissal by reason of union membership, or because of participation in union activities, are applied in the national legislation and what procedure is available to workers to guarantee their rights in this matter; and in the meantime to defer examination of this aspect of the case.
  71. 71 In its recent communication of 13 October 1964 the Government states that the above provisions of Convention No. 98 are fully applied in the current Labour Code and that Decree No. 554 of 1963 goes still further by forbidding large-scale dismissals and imposing heavy penalties on anyone infringing its provisions.
  72. 72 The Committee observes first of all that the Labour Code protects workers in private industry and those employed by state, municipal and other public corporations. Among the provisions included in the Code to protect workers against acts of anti-union discrimination are section 415, which rules that workers shall not be dismissed while forming an association, and section 149, which states that dismissal of an employee who is a member of the managing committee of a workers' organisation is prohibited on pain of compensation equal to one year's wages. In either case termination is permissible only for certain good reasons. Apart from these general provisions the Committee observes that, under section 41(f), an employer cannot require an employee to leave an association to which he belongs; and that, under section 40, employers are obliged to respect the workers' associations; an employer who contravenes either of these provisions is subject to a fine.
  73. 73 The provisions mentioned above seem to afford sufficient protection against certain acts of anti-union discrimination by employers, particularly with regard to the officers of trade unions and to workers when forming a union. However, the Committee observes that, apart from the situations specified, the employer appears-in the light of sections 131, 144 and 150 of the Labour Code-to have ample freedom to terminate a contract of employment with or without notice, provided-in the latter case-that compensation equal to one month's wages is given. As for Decree No. 564, which is mentioned by the Government, this seems to prohibit the immediate dismissal of workers during the period of 30 days following the issue of the decree itself. In the light of the foregoing it may be wondered whether the general rules laid down in section 40 of the Code, under which the employer has to respect the workers' associations, and section 526, which imposes penalties in case of non-compliance with the relevant provisions, give the workers adequate protection against attempts at dismissal because of their union membership or participation in union activities.
  74. 74 In these circumstances, and bearing in mind Article 1 of Convention No. 98 (which Ecuador has ratified) to the effect that workers shall enjoy adequate protection against anti-union discrimination in respect of their employment, the Committee recommends the Governing Body to suggest to the Government that it may care to examine the extent to which the laws afford the workers adequate protection against acts of anti-union discrimination and, if not, to enact specific provisions in conformity with Convention No. 98.
• Allegations relating to Abolition of the Right of Assembly and the Right to Strike
  75. 75 The complainants alleged that in the first days of its assumption of power the Junta abolished the right of assembly and the right to strike. The Government has not sent a reply to these two allegations.
  76. 76 The Committee considered that, although the complainants had not supplied detailed information in support of this point, the request for further information was justified by the importance the Committee has always attached both to the right of assembly and to the right to strike in so far as they affect the exercise of freedom of association, and by the fact that the Government had not submitted any observations on the matter. For these reasons the Committee recommended the Governing Body to request the Government to state what was the legal and factual situation in regard to trade union meetings and strikes, and, pending the receipt of such information, to postpone its examination of this aspect of the case.
  77. 77 The Government sent its observations in the letter of 13 October 1964. This states that as regards freedom of assembly to discuss labour problems there has been no change; meetings of workers are held freely everywhere in the country and there has even been a substantial increase in the number of trade union bodies and organisations. In the Committee's view it now seems clear that the workers continue to enjoy the right of assembly, and to use this right in practice for the discussion of labour problems and for the establishment of trade union organisations. The Committee therefore recommends the Governing Body to take note of the above and to decide that this aspect of the case does not call for further consideration.
  78. 78 As regards the right to strike the Government states that in order to maintain internal peace the Junta has suspended the right to strike as a preventive measure because the trade union leaders took advantage of this right and used it for purely political purposes which were quite unconnected with the interests of the working class; this suspension, it continues, is an interim measure, due to urgent reasons of internal security, and does not prevent workers, in the exercise of their rights, from engaging in trade union activities for the purpose of putting forward claims.
  79. 79 The Committee has always applied the principle that allegations respecting the right to strike are not outside its competence in so far as they affect the exercise of trade union rights. It has also pointed out that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. The Committee has also stressed the importance which it attaches to the existence of guarantees where strikes in essential services or in the public service are prohibited or restricted: the guarantees, it has constantly pointed out, should be adequate to safeguard the interests of the workers who are thus deprived of an essential means of defending their occupational interests, and the restrictions should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures in which the parties can take part at every stage and in which the awards are binding on both parties in every case.
  80. 80 As regards the absolute prohibition of strikes the Committee on Freedom of Association has endorsed the opinion of the Committee of Experts on the Application of Conventions and Recommendations to the effect that such a prohibition may constitute a considerable restriction of the potential activities of trade unions.
  81. 81 In the present case the Government states that strikes are prohibited in order to maintain domestic peace, since the right to strike has been abused for political purposes, and that in any case the prohibition is a transitory measure due to reasons of internal security.
  82. 82 The Committee has always held that the restriction of political strikes and strikes to coerce the government or the community is not an infringement of trade union rights. Moreover, in many previous cases in which it has had to consider allegations against countries which were in a state of political crisis or had just passed through grave disturbances (civil war, revolution, etc.) the Committee has thought it necessary, when examining the various measures taken by the governments, including some against trade unions, to have regard to such exceptional circumstances in its assessment of the merits of the allegations. In many cases, also, in which it has received complaints of alleged infringements of freedom of association under a state of siege or emergency or by virtue of national security legislation the Committee, while indicating that it is not called upon to comment on the necessity for or desirability of such legislation, which is a purely political consideration, has always taken the view that it must consider what repercussions the legislation might have on trade union rights
  83. 83 In the light of those principles in a case in which a government had taken security measures (seizure of the railroads) which profoundly affected the workers' right to strike, the Committee found that there had been no infringement of freedom of association because the measures were taken when the country was in a state of national emergency. The concept of national emergency as a reason justifying special action by a government in a labour dispute was a decisive element also in another case in which the Committee held, however, that the government had not furnished evidence to show that there existed a situation of " acute crisis ".
  84. 84 Having regard to the above considerations the Committee considers that, since a general prohibition of strikes is an important restriction of one of the essential means by which the workers and their organisations can promote and defend their occupational interests, such a prohibition could be open to criticism unless it had been imposed exclusively as a transitory measure in a situation of acute national emergency.
  85. 85 Accordingly the Committee recommends the Governing Body to note the Government's statement that the right to strike has been suspended only for reasons of internal security and as an interim measure; to suggest to the Government that, in view of the time which has elapsed, it might re-examine the situation in the light of the considerations set out in paragraph 84; and to ask it to keep the Committee informed of any new development in the matter.

The Committee's recommendations

1. 86. With regard to the case as a whole the Committee recommends the Governing Body:
   • (a) to note that, according to the information communicated by the Government, all the persons mentioned by the complainants as having been arrested are at liberty once more, and to decide that this aspect of the case does not call for further examination;
   • (b) to suggest to the Government that it may care to examine the extent to which the laws afford the workers adequate protection against acts of anti-union discrimination and, if not, to enact specific provisions in conformity with the provisions of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98);
   • (c) to note that, according to the Government's statement, the workers continue to enjoy the right of assembly for the discussion of labour problems and for the establishment of trade union organisations; and to decide that this aspect of the case does not call for further consideration;
   • (d) to decide, having regard to the fact that the Committee has always applied the principle that allegations relating to the right to strike are not outside its competence in so far as they affect the exercise of trade union rights:
   • (i) to note the Government's statement that the right to strike was suspended only for reasons of internal security and as an interim measure;
   • (ii) to suggest to the Government that, in view of the time which has elapsed, it might re-examine the situation in the light of the considerations set forth in paragraph 84 above, and to request the Government to be good enough to keep the Governing Body informed of any new developments in the matter.