Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Plantations Convention, 1958 (No. 110) - Ecuador (Ratification: 1969)

Application in practice. The Committee takes note of the human rights compliance report of the Ombudsman’s Office of 18 February 2019 regarding the precarious situation in which workers and their families, including women, children and older persons, live and work on Manila hemp estates owned by a Japanese company. During visits to the camps carried out by members of the Ombudsman’s Office between 30 October 2018 and 26 January 2019, it was noted that more than 200 people, most of whom are of African descent, live and work in conditions of extreme poverty and are subject to numerous human rights violations, contrary to the provisions of this Convention. The Committee notes that, according to the above-mentioned report, the company owns the land and is the only beneficiary of the Manila hemp fibre extraction work. In order to avoid formalizing the employment relationship with each of the workers who have lived and worked on its estates, for more than 56 years, the company has implemented a practice by which it rents out plots of land to tenants or contractors who are subordinate to estate administrators and managers, and who are the only ones to have an employment contract with the company. According to the report, such rental agreements run contrary to the prohibition of intermediation under the Labour Code, and their sole purpose is to enable the company to circumvent its legal obligations. The Committee notes that the Ombudsman’s Office recorded cases of slavery, racial discrimination and child labour and that the workers lack employment contracts and receive low wages. It was also noted that housing on the camps is ramshackle, old and gloomy, and lacks ventilation, drinking water, electricity and sanitary facilities. In addition, the camps lack access to basic healthcare services, childcare services, schools and other social services, given that they are located in remote areas and the roads and entrances to them are controlled by the company. Lastly, the Committee notes from the information provided by the Government in its replies to the joint communication AL ECU 4/2019, of 3 April 2019, signed by nine special procedures mandate holders of the United Nations Human Rights Council, with respect to the situation of the workers and their families on the estates. In particular, the Government reported on the various measures implemented by the competent authorities to eliminate and punish identified human rights violations and to restore the rights of the workers and their families. The Government reports that these measures included the temporary closure of the company’s premises, and the creation of a Standing Inter-Agency Working Group to address the specific issues arising from the case. The Committee requests the Government to communicate detailed updated information on the follow-up given to the infringements identified in the report of the Ombudsman’s Office, including measures taken and envisaged to ensure that the workers and their families living on the Japanese company’s Manila hemp estates are compensated for underpayment or non-payment of wages suffered and receive compensation for the years during which they were subjected to these violations, and that, going for work, enjoy decent working and living conditions. The Committee also requests the Government to send detailed updated information on the socio-economic conditions on the country’s plantations and on the measures taken or envisaged to improve those conditions. The Committee further requests the Government to send updated information on the different categories of worker to whom the Convention applies.

Articles 5 to 19 of the Convention. Engagement and recruitment of migrant workers. In its previous comments, the Committee noted the Government’s indication that migrant workers are recruited directly through the employer rather than through private recruitment agencies, in accordance with section 560 of the Labour Code and the Immigration Law. The Committee also noted that the Ministry of Labour Relations was gathering information on the number of migrant workers, their working conditions and types of plantations on which they worked. In this regard, the Committee requested the Government to provide detailed information on the engagement of migrant workers, through employers and public agencies, and information on the conclusions of the above-mentioned study produced by the Ministry of Labour Relations. The Committee notes the Government’s indication that, between 2016 and May 2018, there were 14,240 migrants (1,760 employed) and 236,436 foreigners registered (953 employed) on the page of the Red Socio Empleo public employment agency. The Committee notes, however, that the Government does not provide specific information on the engagement of migrant workers on plantations. The Committee once again requests the Government to provide specific detailed information on the legislation applicable to the engagement and recruitment of migrant workers on plantations. In addition, the Committee once again requests the Government to provide detailed updated information on the number of migrant workers (disaggregated by sex and age) who work on the plantations, their working conditions and the type of plantations on which they work.

Articles 24 to 35. Wages. The Committee notes that, for more than ten years, it has been requesting the Government to provide information on the number of plantation workers who receive the minimum wage. In its previous comments in 2015, the Committee also requested the Government to indicate the measures taken or envisaged to eliminate the gap between the basic monthly minimum wage and the cost of a basic basket of goods. The Committee notes the Government’s indication that it does not possess information on plantation workers’ wages. With respect to the gap between the basic monthly wage and the cost of a basic basket of goods, the Government reports that, according to statistical information from the National Institute of Statistics and Censuses, in 2017 a basic basket of goods cost US$708.98, while monthly family income stood at US$700, resulting in a 1.27 per cent drop in consumption. The Committee observes, however, that the Government does not provide specific information on how the price of a basic basket of goods compares with plantation workers’ wages. The Committee requests the Government to indicate whether it has taken measures to encourage the setting of minimum wages through collective agreements freely entered into by trade unions representing the workers concerned and by employers or employers’ organizations, and requests the Government to provide copies of the collective agreements applicable to the sector. The Committee also requests the Government to take the necessary steps to gather information on the application in practice of the minimum wage in the plantation sector, particularly statistical information on the results of labour inspections in this regard. The Committee requests the Government to provide this information once it has been gathered. The Committee also once again requests the Government to provide specific updated information on how the price of a basic basket of goods compares with plantation workers’ wages.

Articles 36 to 42. Annual holidays with pay. For more than ten years, the Committee has been requesting the Government to indicate the measures taken or envisaged in order to harmonize, among other provisions, section 75 of the Labour Code with the provisions of the Covenant. That section enables workers to forgo taking their annual leave over three consecutive years in order to use their accrued annual leave in the fourth year. In this regard, in its previous comments, the Committee recalled that, in line with Article 41 of the Convention, any agreement to relinquish the right to an annual holiday shall be void. The Government refers to the approval of Ministerial Order No. MDT-2017-0029 of the Ministry of Labour, published in Official Register No. 989 of 21 April 2017, issuing the new Regulations governing special employment relations in the agricultural, livestock and agro-industrial sector. The Government indicates that these Regulations are applicable to plantation workers. The Committee notes that section 1 of the Ministerial Order provides that it governs conditions of work for activities relating to, inter alia, the agricultural sector, which includes tillage and cultivation of the ground and/or plants, including horticultural and banana production. The Committee notes, however, that the Regulations do not govern the paid annual leave system for plantation workers. The Committee therefore once again requests the Government to indicate the measures taken or envisaged to bring section 75 of the Labour Code into line with Article 41 of the Convention.

Articles 46 to 52. Maternity protection. In its previous comments, the Committee requested the Government to indicate whether in national law or practice, in cases where childbirth occurs after the presumed due date, prenatal leave shall always be extended until the actual date of childbirth, without any reduction in postnatal leave, in keeping with Article 47(5) of the Convention. The Government refers to section 152 of the Labour Code, which provides that all female workers shall be entitled to 12 weeks’ paid maternity leave. The Government indicates that the section following section 152 provides that, once the maternity or paternity leave is over, workers shall be entitled to up to an additional nine months’ unpaid leave on an optional and voluntary basis. The Committee requests the Government to indicate whether plantation workers who give birth after their due dates are entitled, after giving birth, to at least six weeks of the paid leave provided for under section 152 of the Labour Code, in line with the provisions of Article 47 of the Convention.

Articles 54 to 70. Right to organize and collective bargaining and freedom of association. The Committee recalls that, for more than ten years, it has noted that the conditions in which trade union activities are conducted are extremely harsh, particularly in the banana industry, resulting in a particularly low unionization rate. The Committee also refers to its observation of 2018 relating to the application by Ecuador of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it noted the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), according to which Ministerial Orders Nos MDT-029-2017, MDT-074-2018 and MDT 096 2018, which establish new forms of contract for banana plantation workers and agricultural workers, obstruct the effective exercise of the right to collective bargaining in those sectors. Furthermore, the Committee notes the Government’s indication that, according to the Integrated System of Labour Organization Registration (SINROL), there are 20 workers’ organizations on plantations and in banana companies. The Committee requests the Government to send updated detailed information on measures taken or envisaged to guarantee the right to association in practice of plantation employers and workers. The Committee also requests the Government to provide detailed information on the impact of these measures on the exercise of that right, including the number of plantation workers’ and employers’ organizations registered under the Integrated System of Labour Organization Registration (SINROL).

Articles 71 to 84. Labour Inspection. In its previous comments, the Committee reiterated its request to the Government to provide statistics on plantation inspections, showing reported infringements of labour provisions (including with regard to working hours, wages, health and safety, maternity leave and child labour) and the penalties imposed on perpetrators. The Committee also requested the Government to indicate measures taken or envisaged to ensure that labour inspections are no longer conducted in a sporadic manner and that labour inspectors’ reports are submitted to the relevant authority at least once a year. The Government indicates that in 2017, the Cuenca Regional Directorate of Labour and Public Service conducted 25 labour inspections on banana plantations, which confirmed due compliance with the labour legislation, including in relation to the prohibition of child labour and occupational safety and health (OSH) standards. The Government added that those inspections are conducted in coordination with the Regional Directorate Departments for Occupational Safety and Health and for the Prevention and Eradication of Child Labour (PETI). The Committee notes, however, that the Government does not provide information on the number of banana plantations in the Cuenca region, or whether the 25 inspections mentioned were announced or unannounced, the duration of the inspections, or the outcomes of these. The Committee further notes that the Government does not provide information on inspections conducted in other parts of the country. The Government also indicates that, between June 2017 and 2018, training and awareness-raising were conducted, in which 1,459 people were trained on issues such as legislation on working times, wages, maternity leave and the prohibition of child labour. The Government further indicates that 1,966 individuals took part in various activities, such as training, workshops and labour inspections, in order to raise awareness and promote compliance with OSH standards. The Committee notes, however, that the Government does not specify whether those activities were conducted with regard to working conditions on plantations. The Committee requests the Government to send detailed updated information on the inspections conducted on plantations throughout the country, showing reported infringements of labour provisions (especially in areas such as working hours, wages, health and safety, maternity leave and child labour) and the penalties imposed on perpetrators. The Committee once again requests the Government to provide information on the measures taken or envisaged to ensure that labour inspections are no longer conducted in a sporadic manner and that labour inspectors’ reports are submitted to the competent authority at least once a year, in accordance with Article 84 of the Convention.

Articles 85 to 88. Housing. In its previous comments, the Committee requested the Government to continue providing information on measures adopted to promote adequate housing for plantation workers and to indicate the minimum standards and specifications for housing provided to plantation workers under the Rural Housing Programme. The Committee notes the Government’s reference to the adoption of Ministerial Order No. AM 027-15 of 24 August 2015, issuing the Regulations for the operation of the housing incentives system (SIV). The Regulations set out the conditions, requirements, procedures and approvals under the SIV in order to facilitate access to decent housing for various population groups. The Government also refers to objective 1 of the 2017-2021 “Lifelong Rights” National Development Plan for “ensuring a life of dignity and equal opportunity for all”, whose programme includes providing vulnerable groups with housing of at least 49m2, ensuring universal accessibility. Under that objective, Ministerial Order No. MIDUVI 002-2018-05-16 was adopted on 16 May 2018, approving the policy and guidelines for the development of social housing projects and its beneficiaries, and establishing the requirements and procedures for the construction of social housing and the eligibility of its beneficiaries. The Committee notes, however, that the Government does not indicate whether plantation workers are among the groups benefiting from these measures and does not include any specific information in its report about minimum housing standards and specifications established for plantation workers. The Committee therefore requests the Government to provide specific information on measures taken to promote adequate housing for plantation workers and to indicate the minimum standards and specifications for housing provided to plantation workers.

Articles 89 to 91. Medical care. In its previous comments, the Committee noted that, according to various sources, banana plantation workers were highly exposed to pesticides during crop spraying. The Committee therefore reiterated its request to the Government to indicate the measures taken or envisaged to provide appropriate medical care for plantation workers and their families. The Committee notes the Government’s reference to the adoption of the Banana Industry Health and Safety Manual under the Banana Occupational Health and Safety Initiative (BOHESI). A number of stakeholders helped produce the manual, including the Ministry of Labour, the Ecuadorian Social Security Institute (IESS) and the Association of Ecuadorian Banana Exporters (AEBE). The manual comprises two parts: (i) a technical manual to provide an overall understanding of the measures necessary to improve OSH; (ii) a specific manual intended to ensure workers are familiar with basic safety measures. The main aim of the manual is to generate an OSH culture in the Ecuadorian banana industry, through training and promotional programmes so that employers, workers, suppliers and contractors are aware of and implement control measures aimed at ensuring an appropriate and conducive working environment, ensuring workers’ health, integrity, safety, hygiene and well-being. The manual therefore provides, among other activities, for publicizing its prevention and control measures, and for the creation of OSH committees. The Government reports that the manual is available for banana industry employers and producers on the Ministry of Labour’s e-learning platform. The Government also indicates that the Ministry of Labour is developing a proposal to encourage the production of health and safety manuals covering various economic activities involving plantations. However, the Committee notes that the Government does not provide any information on measures taken or envisaged to provide medical care to plantation workers and their families. The Committee once again requests the Government to provide detailed updated information on the measures taken or envisaged to provide appropriate medical care to plantation workers and their families.