Effect given to the recommendations of the committee and the Governing Body - Report No 360, June 2011

Case No 2705 (Ecuador) - Complaint date: 16-MAR-09 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 44. In its previous examination of this case, at its November 2009 meeting, the Committee reached the following conclusions and made the following recommendations on the issues that were still pending [see 355th Report, paras 747–749]:
   • The Committee notes that, in the present complaint, the complainant organization, whose Secretary-General is Mr Jaime Arciniega Aguirre, alleges that the Ministry of Labour, in violation of legal and constitutional standards, refused to register the national executive committee of the CEOSL which was elected on 30 and 31 July 2007 and the list of members of the executive committee which had been restructured by the extraordinary meeting of the national executive committee on 8 December 2007; furthermore, in June 2008, the Ministry of Labour registered the executive committee of Mr Jaime Arciniega Aguirre but in September 2008 it registered the other executive committee, undermining the decision rendered by the First Chamber of the Administrative Disputes Court on 1 July 2008 ordering the registration of the executive committee headed by Mr Jaime Arciniega Aguirre.
   • The Committee takes note of the statements by the Government in which it indicates that, because of an internal dispute within the CEOSL, the registration of the two rival executive committees was refused until the trade union organization settled its differences through its statutory bodies or by decisions that it deemed appropriate, in view of the fact that Article 3 of Convention No. 87 provides that the authorities should refrain from any interference which would restrict the right to elect officials in full freedom or impede the lawful exercise thereof. The Government adds that it appealed against the decisions of the court that ordered the registration of the executive committee headed by Mr Jaime Arciniega Aguirre, as well as against the court order to register the executive committee headed by Mr Eduardo Valdez Cuñas. The Committee observes, however, that according to the documentation provided by the complainant organization, the Ministry of Labour registered the executive committee of Mr Jaime Arciniega Aguirre first and then subsequently registered the rival executive committee. Lastly, the Committee notes that, according to the Government, after having considered the applications for amparo (for violation of constitutional rights), on 6 May 2009 the Constitutional Court issued an order to call and hold new elections within a maximum period of 90 days to appoint the new executive committee of the CEOSL; it also ordered the presence of two officials from the Ministry of Labour to act as observers and the assistance of the National Electoral Board.
   • The Committee recalls that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. The Committee also recalls that, when internal disputes arise in a trade union organization, they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1114 and 1122]. In this regard, the Committee notes that the internal dispute in the CEOSL has been brought before a judicial authority and that this authority has indicated the steps to be taken to resolve it, namely the holding of elections in the near future. The Committee requests the Government to keep it informed of the outcome of those union elections and expects to receive this information as soon as possible. The Committee regrets to note that these elections will be conducted almost two years after the internal conflict occurred and the damage that this has caused to the trade union organization and its members.
2. 45. In its communication of 21 June 2010, the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) claims that, on the request of the Ministry of Labour Relations, the Constitutional Court issued on 6 May 2009 resolutions Nos 1148-2008-RA and 11722008-RA, providing as follows:
3. (1) In view of the conflict between two executives of the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL), and, given that two amparo proceedings for the protection of constitutional rights have been lodged that are seeking the recognition of the two respective executive committees, with a view to resolving the internal dissention, the following provisions are made:
   • (a) within a maximum period of 90 days elections will be convened and organized to appoint the new national executive committee of the CEOSL, in accordance with the Constitution and the statutory provisions of the trade union confederation in question;
   • (b) the assistance of the National Electoral Council will be requested to organize, manage, monitor and guarantee the democratic event outlined in the previous clause in consultation with the workers affiliated to the CEOSL;
   • (c) the Ministry of Labour and Employment will be requested to appoint two highlevel officials to act as observers of the electoral process;
   • (d) the executives in dispute will appoint two delegates from their respective executive committees to coordinate with the National Electoral Council the smooth running of the process to elect the new executive committee of the CEOSL, which will be granted legitimacy.
4. (2) Once the electoral process has been carried out in accordance with the above provisions, the Ministry of Labour and Employment will register the members of the new national executive committee of the CEOSL.
5. (3) The file will be sent to the originating court so that the legal formalities can be completed.
6. 46. The CEOSL highlights the authorities’ failure to respect the deadlines established by the Constitutional Court. However, it says that with the aim of overcoming this internal dissention, the representatives of the CEOSL appointed its two delegates to coordinate with the National Electoral Council (CNE) the smooth running of the process to elect the CEOSL’s new executive committee. It then goes on to say that regrettably they were despicably deceived by the CNE. The CNE unilaterally drew up “regulations” that were contrary to what had been agreed and that allowed the opposing party to participate with delegates up until 25 August 2009 (419 delegates) while the complainant organization’s sector was permitted to participate as per its list up until 31 July 2009 (219 delegates, with the list also including some delegates from the opposing party).
7. 47. In communications sent to the CNE, the complainant organization submitted its challenges in due time on 3 September 2009, indicating that several of the organizations included on the list of delegates submitted by the opposing party were not registered with the Ministry and that some organizations had never been affiliated to the CEOSL and, on the contrary, belonged to other trade union confederations.
8. 48. It appears from the list of delegates originally submitted by the opposing party that “148 delegates” disappeared and only “224 delegates” ended up voting, including some organizations that had never been affiliated to the CEOSL. Moreover, the Council did not require the organizations to prove their affiliation.
9. 49. Furthermore, the CNE imposed “regulations” that violated all principles and did not allow the complainant organization any involvement in drawing them up. This led to an internal resolution being issued by the majority first-level organizations (20 of the overall 24 federations). All this, against the backdrop of the trade union autonomy guaranteed under the Constitution and in ILO Convention No. 87, resulted in the complainant organization’s sector deciding not to participate in the “elections” under these conditions and addressing an official letter to the CNE on 3 May 2010, informing it accordingly.
10. 50. The CNE, however, proceeded with the “elections”, which were held on 12 June 2010, without the participation of the complainant organization, which did not recognize the elections as valid, devoid as they were of transparency and legality, and constituting an example of state bodies interfering in trade union autonomy.
11. 51. In its communication of 25 November 2010, the Government states that the Ministry of Labour Relations, through its delegates, acted as an observer of the electoral process for the new executive committee of the CEOSL, in accordance with the convocation by the CNE, which conducted this electoral process, in compliance with the resolution handed down by the Constitutional Court. The Government notes that the CNE declared Mr Eduardo Valdez, a representative of one of the executives in the dispute, to be the winner.
12. 52. The Committee notes the CEOSL’s new allegations and the Government’s new observations. It notes the Government’s statement that the executive committee declared the winner by the CNE is the one led by Mr Eduardo Valdez. The Committee observes, however, that the executive committee that submitted the complaint (led by Mr Jaime Arciniega Aguirre) highlights serious flaws that allegedly marred the process and that resulted in challenges being brought before the CNE as well as the lack of consultation of the complainant organization’s sector regarding the drafting of the regulations by the CNE, which led to this sector not participating in the elections.
13. 53. The Committee notes that on many occasions it has questioned the participation of non-judicial bodies (such as the CNE) in the electoral processes of trade union organizations. In this specific case, the CNE participated at the request of the Supreme Court and with the agreement of the complainant organization, and as such its participation was in principle justified, but the same does not necessarily hold true for the CNE’s subsequent actions and decisions. The Committee observes that the complainant organization has alleged serious flaws and a lack of consultation over the electoral regulations drafted by the CNE, and that the sector that it represents submitted challenges. As a result of this situation it decided not to participate in the elections.
14. 54. In these circumstances, the Committee considers that it may have been preferable if the authorities had opted for an agreement between both sectors on the conditions and circumstances surrounding the electoral process. The Committee therefore invites the Government to examine the situation with both sectors and to keep it informed in this respect.