Interim Report - Report No 351, November 2008

Case No 2538 (Ecuador) - Complaint date: 27-DEC-06 - Closed

Allegations: The complainant organization alleges that the authorities of the Foundation for Science and Technology (FUNDACYT) requested that the ministerial agreement approving and granting legal personality to the FUNDACYT trade union be annulled and declared invalid; that the FUNDACYT authorities have not responded to its request to negotiate a collective agreement and that, in retaliation, ten workers were dismissed without compensation. It further alleges that the FUNDACYT authorities are urging the workers to give up their membership of the workers’ organization

1. 836. The Committee examined this case at its November 2007 meeting and submitted an interim report to the Governing Body [see 348th Report, paras 585–619, approved by the Governing Body at its 300th Session (November 2007)]. The Government sent new observations in communications dated 9 December 2007 and 14 April 2008.
2. 837. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 838. In its previous examination of the case in November 2007 [see 348th Report, paras 585–619], the Committee formulated the following recommendations regarding the allegations that remained pending:
2. With regard to the allegations relating to the dismissal of ten FUNDACYT workers, without compensation, following the request to negotiate a collective agreement and the allegations that the FUNDACYT authorities are urging workers to give up their membership of the trade union, the Committee requests the Government to provide information as soon as possible on: (1) the result of the judicial proceedings under way relating to the dismissal of the trade union officials, Ms María Isabel Cevallos Simancas and Mr Norman Ricardo Quintana Ramírez; (2) the other eight dismissals; and (3) the reason why the officials and members of the FUNDACYT trade union gave up their membership.
3. B. The Government’s reply
4. 839. In its communication dated 9 December 2007, the Government states that the Ministry of Labour and Employment has proceeded legally and in due form with the administrative proceedings under way in relation to this case.
5. 840. In its communication dated 14 April 2008, the Government states, with regard to the judicial proceedings relating to the dismissal of trade union official Mr Norman Ricardo Quintana Ramírez, that his appeal has been rejected (the Government attached a copy of the ruling stating that the allegation of summary dismissal was not convincingly proven). With regard to the judicial proceedings relating to the dismissal of trade union official Ms María Isabel Cevallos Simancas, the Government states that, through the ruling of 27 April 2007, the proceedings were annulled because of a violation of the Code of Civil Procedure. Furthermore, the Government states that she has submitted a letter dropping the appeal and that the judge summoned the parties to the final hearing on 3 April 2008.
6. 841. With regard to the allegations regarding the other eight dismissed FUNDACYT workers, the Government indicates that it cannot provide information if the names of the persons in question are not specified.
7. 842. With regard to the request for information on the reasons that prompted all the officials and members of the FUNDACYT trade union to give up their membership, the Government states that, having reviewed the file at the Regional Labour Directorate on the FUNDACYT trade union, it observed that there are two official statements addressed to the Regional Labour Director, signed by Jenny Cedeño, Sandra Argotty Pfeil and Monserrat Ivonne Cadena Barsallo and dated 7 and 9 August 2006, to the effect that “I hereby declare that even though I was present at the meeting on 18 July 2006, the date on which some workers held a meeting to establish the FUNDACYT trade union, and signed up, I do not wish to continue being a member of the trade union. I am informing you, the Director, for all pertinent purposes”. According to the Government, the text of these documents makes it clear that the workers whose names appear in the aforementioned statements freely and voluntarily decided not to be members of the trade union. Finally, the Government indicates that, apart from the statements, the file does not contain any other document attesting to the alleged situation, and therefore all that remains to be said is that individuals may join a union or give up their membership of a union (or of any other organization) at their discretion if they so choose.

C. The Committee’s conclusions

1. 843. The Committee observes that the allegations that had remained pending following the examination of this case in November 2007 related to the dismissal without compensation of ten FUNDACYT workers (including two trade union officials) following a request to negotiate a collective agreement, and to claims that the authorities were urging workers to give up their trade union membership. In this respect, the Committee requested the Government to provide information on: (1) the result of the judicial proceedings under way relating to the dismissal of the trade union officials Ms María Isabel Cevallos Simancas and Mr Norman Ricardo Quintana Ramírez; (2) the other eight dismissals; and (3) the reason why the officials and members of the FUNDACYT trade union gave up their membership.
2. 844. With regard to the judicial proceedings relating to the dismissal of trade union official Mr Norman Ricardo Quintana Ramírez, the Committee notes the Government’s statements to the effect that the appeal has been rejected and that the ruling (a copy of which is attached to the Government’s reply) states that the alleged summary dismissal has not been convincingly proven. Under these circumstances, the Committee will not pursue its examination of this allegation.
3. 845. With regard to the judicial proceedings relating to the dismissal of trade union official Ms María Isabel Cevallos Simancas, the Committee notes the Government’s statements to the effect that: (1) through the ruling of 27 April 2007, the judicial authority annulled the proceedings because of a violation of the provisions of the Code of Civil Procedure; (2) the trade union official submitted a letter dropping the appeal; and (3) the judge summoned the parties to the final hearing on 3 April 2008. In these circumstances, the Committee requests the Government to keep it informed of the final outcome of the judicial proceedings.
4. 846. With regard to the allegation relating to the other eight dismissed FUNDACYT workers, the Committee notes that the Government states that it cannot provide information on this without the names of the workers in question. In this respect, the Committee invites the complainant to communicate the full names of the eight workers who were dismissed after establishing the FUNDACYT trade union.
5. 847. With regard to the reason why the officials and members of the FUNDACYT trade union gave up their membership, the Committee notes the Government’s statements to the effect that: (1) having examined the file at the Regional Labour Directorate on the FUNDACYT trade union, it notes that there are two official statements addressed to the Regional Labour Director, signed by Jenny Cedeño, Sandra Argotty Pfeil and Monserrat Ivonne Cadena Barsallo and dated 7 and 9 August 2006, to the effect that: “I hereby declare that even though I was present at the meeting on 18 July 2006, the date on which some workers held a meeting to establish the FUNDACYT trade union, and signed up, I do not wish to continue being a member of the trade union. I am informing you, the Director, for all pertinent purposes”; (2) the text of these statements makes it clear that the workers whose names appear in them freely and voluntarily decided not to be members of the trade union; and (3) apart from the statements, the file does not contain any other document attesting to the alleged situation, and therefore all that remains to be said is that individuals may join a union or give up membership of a trade union (or any other organization) at their discretion, if they so choose. Under these circumstances, observing that, according to the information provided by the complainant and, at the time, by the Government, all the officials and members of the FUNDACYT trade union gave up their membership on the same dates and through identical submissions, the Committee requests the Government to take the necessary measures so that a further investigation is carried out in an effort to determine the reason why they gave up their membership. The Committee requests the Government to keep it informed of the outcome of that investigation.

The Committee's recommendations

1. 848. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of the final outcome of the judicial proceedings under way relating to the FUNDACYT trade union official Ms María Isabel Cevallos Simancas.
   • (b) The Committee invites the complainant organization to communicate the full names of the eight workers who were dismissed after establishing a FUNDACYT trade union.
   • (c) The Committee requests the Government to take the necessary measures so that a further investigation is carried out in an effort to determine the reasons why all the officials and members of the FUNDACYT trade union gave up their membership, and to keep it informed of the outcome of that investigation.