Report in which the committee requests to be kept informed of development - Report No 278, June 1991

Case No 1544 (Ecuador) - Complaint date: 31-JUL-90 - Closed

1. 94. The complaints appear in communications from the International Organisation of Employers (IOE) and the International Confederation of Free Trade Unions (ICFTU), dated 31 July and 4 September 1990, respectively. The Government sent its observations in a communication dated 15 February 1991.
2. 95. Ecuador has ratified the Freedom of Association and the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 96. The International Organisation of Employers (IOE) alleges in its communication of 31 July 1990 that the Government has issued a new regulation concerning the election of Employers' representatives to the International Labour Conference (Executive Decree No. 1589 of 18 June 1990). Section 4 of this Decree states that: "With a view to ensuring the democratic rotation of representativity, persons who have previously attended the International Labour Conference as Employers' delegates or advisers shall, as from the 78th Session of the Conference, be ineligible to serve again in the capacity of delegate or adviser in the Ecuadorian delegation". Likewise, section 1 prescribes a rotation system which will prevent the nomination of Employers' delegates or advisers in accordance with the criterion of the most representative organisation specified in article 3, paragraph 5, of the ILO Constitution, and in accordance with the needs of employers in the light of the topics under discussion.
2. 97. According to the IOE, this regulation, and particularly the above-mentioned sections, constitute an act of interference by the Government in the activities of employers' organisations, and infringe the right of employers freely to elect their representatives, in violation of the principles of freedom of association enshrined in Convention No. 87.
3. 98. The International Confederation of Free Trade Unions (ICFTU) alleges in its communication of 4 September 1990 that on 29 March 1990 the Ministry of Labour, by means of a circular, invited the four central trade union organisations of Ecuadorian workers, namely, the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Confederation of Ecuadorian Workers (CTE), the Ecuadorian Confederation of Class Organisations (CEDOC) and the Ecuadorian Confederation of Unified Class-based Workers' Organisations (CEDOCUT), to submit their opinions concerning the composition of the Ecuadorian workers' delegation to the 1990 Session of the Conference, recalling that, in accordance with Decree No. 1381, the CEOSL was responsible for nominating the Workers' delegate. Subsequently, on 20 April 1990, the United Workers' Front, which comprises the CEOSL, the CTE and the CEDOCUT, duly informed the Government that the CEOSL would designate the Workers' delegate to the 1990 Session of the Conference, and expressed its opinion on how the system should be adapted to accommodate the fact that a fourth legally recognised workers' confederation had come into existence. On the same day, the CEOSL informed the Government that it would appoint its President, José Chávez, as the delegate. Some days later, on 25 May 1990, without prior notice or consultation and without giving any reason whatsoever, the Government promulgated Decree No. 1535 amending Decree No. 1381. Section 2 of the new Decree states that with a view to helping new trade union leaders to acquire international experience, and in order to further the training of Ecuadorian trade unionists, "persons having attended the International Labour Conference as Workers' delegates or advisers would be ineligible to attend future sessions of the Conference in the same capacity, beginning with the Conference's 77th Session". On 28 May 1990, the Government notified the four trade union confederations of the content of the Decree, thus underscoring the unilateral nature of the decision it had taken. The Government then requested the confederations to nominate their representatives in accordance with the new provisions by 31 May 1990.
4. 99. The ICFTU considers that provisions of Decree No. 1535, which prevented Mr. Chávez, the freely elected delegate of Ecuadorian workers, to participate in the 1990 Session of the Conference, constitute a clear interference in the internal affairs of the Ecuadorian trade union movement and a violation of the principles of freedom of association, and should therefore be amended. The ICFTU emphasises that up until 1990, the appointment of Workers' representatives had followed a system of rotation agreed to by the workers' confederations (Decree No. 1381 of 13 December 1982), following consultation with these confederations, noting that this system had functioned without any problems whatsoever.

B. The Government's reply

1. 100. In its communication of 15 February 1991 the Government states that, in accordance with article 3, paragraph 5 of the ILO Constitution, which provides that the nomination of non-governmental delegates and advisers should be made "in agreement with the industrial organisations ... which are most representative of employers or workpeople ...", the Ecuadorian Government has regulated the procedure to be followed for such nominations since 17 December 1982 in accordance with Executive Decree No. 1381, institutionalising the system of rotation for the designation of the Workers' delegate.
2. 101. As regards the designation of the Workers' delegate to the 77th Session of the International Labour Conference, the Government states that it duly consulted the four most representative organisations of workers prior to designating the delegate, as required by article 3, paragraph 5, of the Constitution of the ILO.
3. 102. As regards Decree No. 1535 of 25 May 1990, the Government states that it is intended solely to reform the regulation in force concerning the election of Workers' delegates by establishing a general requirement that the delegate who shall represent the country's most representative organisations of workers may not have served as such at previous sessions of the International Labour Conference. Consequently, the power to designate delegates continues to be the exclusive province of the most representative organisations, and the Government has not modified this power. In fact, the names of those who made up the Ecuadorian delegation to the 1990 Session of the Conference as representing workers' organisations were submitted by the organisations concerned. Only those organisations which refused to reply to the Government's invitation failed to be included in the Ecuadorian delegation to the Conference's 77th Session. Specifically, the fact that the CEOSL and the CTE abstained from complying with the above-mentioned requirement does not in any way take away from the legitimacy of the nominations made in due course by the other two trade union confederations: the CEDOC and the CEDOCUT. Moreover, the Government expresses some surprise at the allegations, as it is public knowledge that the CEDOCUT, whose delegate participated in the deliberations of the 77th Session, has very close ties with the complainant organisation (the CEOSL), as reflected in their joint participation in the United Workers' Front (FUT). Thus, the Ecuadorian Government considers inaccurate and tendentious the assertion that there is only one representative organisation of workers in Ecuador, and that such organisation, the CEOSL, had been prevented from participating in the delegation to the 77th Session of the International Labour Conference.
4. 103. According to the Government, the idea of regulating the annual election of the Workers' delegate and the two Workers' advisers to the International Labour Conference was duly brought to the attention of the organisations concerned when Decree No. 1381 was issued in 1982, and in March 1990 when the possibility of introducing certain reforms to the regulation was raised. The Government encloses with its communication an invitation extended by the Minister of Labour to the four trade union confederations, requesting them to comment on possible reforms to Decree No. 1381, as well as the reply sent by the FUT, on behalf of CEOSL, CTE and CEDOCUT.
5. 104. The Government adds that the preamble of Decree No. 1535 of 25 May 1990 clearly states the reasons for the amendments: "Whereas it is advisable for the country to establish the democratic principle of rotation of trade union representation," and "whereas the application of this democratic principle ... will enable new trade union leaders to gain international experience and further the training of the Ecuadorian trade union leadership". The Government states that although certain trade union organisations refuse to accept the reasons set forth by the Government, these reasons are definitely designed to promote the interests of workers as a whole, and not of any individual in particular.
6. 105. The Government states that since Decree No. 1535 was promulgated on 28 May 1990, and was made public and binding as of that date, it is odd that the allegations should claim that the fact of bringing this Decree to the attention of trade union confederations should underline its unilateral nature since all binding standards issued by state agencies must be made public.
7. 106. In addition, the facts stated by the Government are confirmed in the allegations themselves, which state that "the Government requested the trade union confederations to nominate their representatives by 31 May"; thus, there are no grounds for accusing the Government of interference. In spite of themselves, the allegations admit that those who appointed (or who spitefully refused to appoint) their delegates were precisely the workers' confederations. Lastly, the Government states that the complaint is totally unfounded and unjust, and that it rejects it.

C. The Committee's conclusions

1. 107. The Committee notes that the complainant organisations of both workers and employers have alleged: (1) the adoption- without the prior consultation of employers' and workers' organisations- of two Decrees (No. 1535, dated 25 May 1990 and No. 1589, dated 18 June 1990) concerning the selection of Workers' and Employers' delegates and advisers belonging to the Ecuadorian delegation to the International Labour Conference; (2) the prohibition, pursuant to these Decrees, on allowing the same person to participate more than once in the International Labour Conference as a delegate or adviser of workers or employers (which, it may be noted, prevented the President of the CEOSL from participating as a Workers' delegate at the 77th Session of the Conference (June 1990), in spite of the fact that he had been nominated by the country's trade union confederations); and (3) the requirement of a rotation scheme among the six most representative employers' organisations for the nomination of the Employers' delegate and adviser to the sessions of the International Labour Conference.
2. 108. Moreover, the Committee notes that, according to the Government, the Workers' delegate to the 77th Session of the Conference was designated by the organisations of workers, subject to the condition (as admitted by the Government) that such person had not been part of the Ecuadorian delegation to earlier sessions of the Conference. The Government justifies this requirement on the basis of the principle of the "alternation in democratic systems", the acquisition of international experience by new trade union leaders and the further training of Ecuadorian trade union leaders.
3. 109. However, the Committee notes that, contrary to the Government's statements, the documentation submitted by the Government fails to prove that the specific text of Decree No. 1535 was submitted for consultation when still a draft, at least that part of it requiring that persons having participated in earlier sessions of the Conference would be ineligible to serve as delegates or advisers.
4. 110. The Committee understands that the ICFTU filed a complaint concerning the nomination of the Ecuadorian Workers' delegation at the 77th Session of the International Labour Conference (June 1990) and that the Credentials Committee of the Conference submitted a report on this matter (see Provisional Record, No. 23, Third Report, paras. 28-36). Its conclusions are as follows:
   • The (Credentials) Committee noted that, according to the ICFTU objection, the CEOSL, which was the most important central organisation, had been deprived of the opportunity to nominate its representative, Mr. J. Chávez, because of Decree No. 1535 of 25 May 1990. The Committee pointed out that the Decree in question had modified the rotation system, which had been freely agreed to several years ago and which had functionned to the satisfaction of the organisations concerned. In this respect, the Committee recalled that any rotation system should always be the result of agreement between the most representative organisations and must not be imposed by the Government.
   • The Committee considered that the Decree, apart from violating article 3, paragraph 5, of the Constitution of the ILO, by impeding the free choice by the organisations of the persons who would represent them in Geneva, constituted an act of interference contrary to the principles of freedom of association.
5. 111. The Committee considers that the principles and comments contained in the above conclusions concerning the designation of Ecuador's Workers' delegation to the International Labour Conference (Decree No. 1535 of 25 May 1990) also apply to the procedure for the designation of the employers' delegation (Decree No. 1589 of 18 June 1990), given the fact that the two situations are substantially similar.
6. 112. Consequently, the Committee regrets that the President of the CEOSL was unable to participate at the 77th Session of the International Labour Conference (June 1990) as a Workers' delegate, although he had been nominated by the country's trade union confederations, owing to the application of Decree No. 1535, which prohibits anyone from participating more than once as a delegate or adviser in the Ecuadorian delegation to the International Labour Conference. The Committee considers that Decrees Nos. 1535 and 1589 violate the principles of freedom of association, according to which employers' and workers' organisations have the right freely to elect their representatives (Articles 3 and 5 of Convention No. 87). It urges the Government to amend these Decrees in consultation with the most representative organisations of workers and employers, with a view to eliminating the provisions which prohibit a worker or employer from attending the International Labour Conference more than once as a delegate or adviser.

The Committee's recommendations

1. 113. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a)The Committee regrets that the President of the CEOSL was not able to attend the 77th Session of the International Labour Conference (June 1990) as the Workers' delegate, although he had been nominated by the country's trade union confederations, owing to the application of Decree No. 1535 which prohibits any person from attending the International Labour Conference more than once as a delegate or adviser.
   • (b)The Committee considers that Decrees Nos. 1535 and 1589 violate the principles of freedom of association according to which employers' and workers' organisations have the right freely to elect their representatives, and it urges the Government to amend these Decrees in consultation with the most representative organisations of workers and employers, with a view to eliminating the provisions which prohibit any person, whether a worker or employer, from attending the International Labour Conference more than once as a delegate or adviser.