Informe provisional - Informe núm. 381, Marzo 2017

Caso núm. 3148 (Ecuador) - Fecha de presentación de la queja:: 18-MAY-15 - Activo

Allegations: The complainants denounce, firstly, the refusal to register a trade union of banana plantation workers bringing together workers from various companies in the sector and, secondly, anti-union action to prevent the setting up of a company union in that sector

1. 420. The complaint is contained in communications of 18 May 2015, 19 February and 11 August 2016, submitted by the Trade Union Association of Agricultural and Rural Workers (ASTAC) and the Trade Union Association of the fruit company Compañía Frutas Selectas SA FRUTSESA.
2. 421. The Government submitted its observations in communications of 23 February, 24 October and 29 December 2016.
3. 422. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Rural Workers’ Organisations Convention, 1975 (No. 141).

A. The complainants’ allegations

1. 423. In their various communications, the complainants allege, first, that in violation of ILO Conventions Nos 87, 98, 110 and 141, which have been ratified by Ecuador, the labour administration refused to register ASTAC. In this connection, the complainants contend, in particular, that: (i) on 10 February 2014, 66 workers from the banana agro-industry held a meeting in Quevedo, Los Ríos Province, in order to found ASTAC; (ii) on 30 July 2014, ASTAC lodged its registration application with the Regional Directorate of Labour in Guayaquil, duly supported by the documentation required by section 443 of the Labour Code; (iii) on 15 October 2014, a resolution of the Deputy Minister of Labour refused to recognize the setting up of ASTAC; (iv) the labour administration’s decision rested on the finding that the workers who had attended ASTAC’s constituent assembly were employed by a variety of companies, that the documents which had been submitted did not refer to any employer in particular and that the applicants therefore wished to set up an independent association without them having any dependent employment relationship, in breach of the procedures laid down in sections 1, 9, 443 and 454 of the Labour Code; (v) on 17 April 2015, the Ministry of Labour, basing its decision on the same grounds, rejected the extraordinary appeal for review filed against the resolution refusing to recognize the founding of the trade union; and (vi) on 12 February 2016, the Quevedo Court of Justice found that the lawsuit seeking protection against a denial of freedom of association brought by the nascent trade union against the Minister of Labour was inadmissible on grounds of lack of territorial jurisdiction. In this connection, the complainant holds that the Quevedo Court of Justice infringed both the Basic Act on jurisdictional guarantees and constitutional review, and the Constitution which recognize that “the court of the place where the act or omission arose, or where it produces its effects, shall be competent”.
2. 424. The complainants add that the refusal to recognize the establishment of a banana plantation workers’ trade union covering workers from various companies in the sector prevents more than 20,000 banana plantation workers from exercising their trade union rights, since within the country there are more than 3,000 small banana plantations which employ fewer than 30 workers, the minimum number required by the Labour Code for setting up a trade union. The complainants further submit that, in plantations which employ a sufficient number of workers for the lawful founding of a trade union, the employers often tend to retaliate if a trade union is formed, as is demonstrated by the second allegation in the present complaint, this being all the more reason not to forbid the founding of a trade union organization in the banana sector. Lastly, the complainants hold that, in other areas, the Ministry of Labour recognizes the soundness of the sectoral trade union model, as is demonstrated by the registration of the National Union of Remunerated Domestic Workers (SINUTRHE) on 20 June 2016.
3. 425. Secondly, the complainants allege that the members and leaders of the 7 February Association of Banana Plantation Workers of the Enterprise Frutas Selectas SA Frutsesa (hereinafter “the company trade union”) are being targeted by a number of anti-union acts aimed at preventing the registration and securing the disappearance of this nascent trade union. In this connection, the complainants state in particular that: (i) the constituent assembly of the company trade union took place on 22 June 2014 and was attended by 45 workers, as attested by their signature; (ii) on 14 August 2014, Mr Luis Ochoa, the general secretary, submitted an application for the registration of the company union to the Regional Directorate of Labour of Guayas Province; (iii) on 20 October 2014, the Provincial Labour Inspector of Guayas notified the banana company of the receipt of the trade union’s application for registration; (iv) on 23 October 2014, the Regional Directorate of Labour of Guayaquil received the sworn testimony of five workers who stated that they had not taken part in the company trade union’s constituent assembly and that they did not wish to become members thereof, although their names were on the founding document; (v) as from 24 October 2014, the company began to dismiss trade union leaders and members who had not signed sworn statements, including the organization’s general secretary, Mr Luis Ochoa; (vi) on 27 and 29 October 2014 the Regional Directorate of Labour of Guayaquil received an additional three and four sworn statements, with identical wording to that of the statements received on 23 October 2014; (vii) in breach of the law, the notary did not read out the text of the these statements to the workers who were pressurized into signing them; (viii) on 28 October 2014, the banana company’s legal representative filed an appeal against the proceedings to establish the trade union with the Regional Directorate of Labour, in which he argued that 12 of the 45 founding members of the trade union had never been company employees and that two other persons had terminated their employment relationship with the company prior to the founding of the trade union; (ix) on 26 November 2014, a resolution of the Deputy Minister of Labour refused to recognize the founding of the company union on the grounds that it lacked the minimum number of members required by the Labour Code; (x) the resolution expressly stated that, on checking with the company, it had been ascertained that of the 45 persons who had allegedly been founding members only 31 were company workers at the time the trade union was set up and that of these 31 persons, 11 had presented a sworn statement denying that they had participated in the founding of the trade union; and (xi) on 11 May 2015, Mr Luis Ochoa filed a criminal complaint against Mr Tito Gentillini, the company’s representative, alleging intimidation, on the grounds that on 8 and 9 May 2015 he had received telephone calls and text messages containing threats of physical violence should he continue to remain in contact with company employees who had not yet been dismissed. Finally, the complainants contend that, notwithstanding the dismissal of and threats against the company’s trade union’s leaders, no public authority had taken a stand to protect the workers.

B. The Government’s reply

Refusal to register the Trade Union Association of Agricultural and Rural Workers (ASTAC)

1. 426. In its communication of 23 February 2016, the Government states, with reference to the Ministry of Labour’s refusal to register ASTAC, that the Ministry’s decision was based on the correct application of the provisions of the Labour Code. In particular, the Government contends that: (i) section 443 of the Labour Code requires at least 30 workers for the founding of a trade union; (ii) in pursuance of section 449 of the Labour Code, the leaders of workers’ associations of any kind must be employees of the pertinent enterprise; and (iii) article 2.6 of the Regulations for Labour Organizations (Ministerial Order No. 130) makes notifying the employer of the founding of a trade union a prerequisite for its establishment. In view of the foregoing, the Government says that, in the case of ASTAC, the 31 persons who attended the constituent assembly worked for various employers and that ASTAC did not therefore comply with section 449 of the Labour Code which requires that trade union organizations comprise workers of the same enterprise. The Government further states that the members of ASTAC may form a social organization (governed by Executive Decree No. 739), but not a trade union organization.
2. 427. In a second communication of 24 October 2016, the Government refers to the complainants’ mention of the registration of the SINUTRHE. The Government holds that recognition of SINUTRHE does not constitute discrimination against banana plantation workers, since the authorization of the establishment of SINUTRHE is a direct response to and implements the Domestic Workers Convention, 2011 (No. 189), which has been ratified by Ecuador and which stipulates that the State must take measures to ensure the effective promotion and protection of the human rights of all domestic workers, inter alia, freedom of association and the effective recognition of the right to collective bargaining. The Government adds that, under the Labour Code, banana plantation workers always have the possibility to set up a second-level trade union comprising primary-level trade unions.
3. 428. In a communication of 29 December 2016, the Government forwards its observations on the ruling of the Quevedo Court of Justice, of 12 February 2016, that the lawsuit seeking protection against a denial of freedom of association, which had been filed by ASTAC against the Minister of Labour, was inadmissible on the grounds of lack of territorial jurisdiction. The Government states that, under the Constitution of the Republic of Ecuador, it may not interfere in the administration of justice and courts’ decisions.
4. 429. In its communication of 23 February 2016, the Government states that the company trade union was not registered by the labour administration because it lacked the minimum number of members required by section 443 of the Labour Code. In this connection, the Government says that: (i) according to the payroll file of the Ecuadorian Social Security Institute, 12 of the 45 founding members of the company trade union had never worked for the company in question, which reduced the total number of signatories to 33; (ii) two of these 33 persons had left before the company trade union’s constituent assembly, lowering the total number of signatories employed by the company to 31; (iii) 11 sworn statements were made to the effect that the workers concerned had not been present at the company trade union’s constituent assembly and that they did not intend to belong to any trade union organization; (iv) these sworn statements made before a notary were taken into consideration by the labour administration, since article 6 of the Notary Act establishes that notaries are officials vested with public trust; and (v) it is clear from the above that only 20 company workers wish to be members of the trade union organization, which is under the minimum number of 30 workers required by section 443 of the Labour Code, this being the reason why recognition of the organization’s establishment was refused by a resolution of the Deputy Minister of Labour of 26 November 2014.
5. 430. In its communication of 29 December 2016, the Government forwards information from the Ministry of Labour records regarding the termination of employment of the banana plantation workers who took part in the setting up of the company trade union. The list supplied by the Government shows that: (i) two employment contracts of founding members of the trade union were terminated by mutual consent between 31 August and 9 September 2014; (ii) nine employment contracts of founding members of the trade union were terminated by mutual consent between 22 and 24 October 2014; (iii) two founding members were summarily dismissed on 24 October 2014; (iv) four further employment contracts of founding members of the trade union were terminated by mutual consent between January and March 2015; and (v) another founding member was summarily dismissed on 11 March 2015. The Government adds that, in that period, the employer was not found to have requested the labour inspectorate to terminate employment contracts owing to the workers’ faults “authorization procedure”.

C. The Committee’s conclusions

1. 431. The Committee notes that, in this case, the complainants denounce, firstly, the refusal to register a trade union organization of banana plantation workers bringing together workers from various companies in the sector and, secondly, anti-union action aimed at preventing the establishment of a nascent works union in that sector.
2. 432. With respect to the refusal of the labour administration to register ASTAC, the Committee takes note of the fact that the complainants contend that ASTAC was formed on 10 February 2014 by a sufficient number of founding members, that the registration application submitted to the Ministry of Labour was supported by all the documentation required by the Labour Code, that, however, the Ministry of Labour refused to register the trade union on the grounds that it was not being set up by workers from one and the same company. The Committee notes that the complainants allege that: (i) the refusal to register the trade union was a clear violation of the trade union rights recognized by Conventions Nos 87, 98, 110 and 141, which Ecuador has ratified; (ii) in practice, preventing banana plantation workers from forming a trade union whose members come from more than one company renders it impossible for 20,000 workers in that sector to exercise their trade union rights, since thousands of banana plantations employ fewer than 30 workers, the minimum number of workers required by the Labour Code for the establishment of a trade union; and (iii) the refusal to register the trade union constitutes discrimination against banana plantation workers, given that in other sectors in the country the labour administration registers sectoral trade unions, as is shown by the establishment of the SINUTRHE in June 2016.
3. 433. The Committee also takes note that the Government holds that: (i) the founding members of ASTAC were employed by several employers and, for that reason, ASTAC did not comply with section 449 of the Labour Code which requires that trade union organizations comprise workers from the same company; (ii) on the other hand, the members of ASTAC could set up a social organization, or a second-level trade union which must nevertheless comprise works trade unions; and( iii) the recognition of SINUTRHE, which brings together domestic workers who work for several employers, does not constitute discrimination against banana plantation workers, but is a direct response to the demands of ILO Convention No. 189 which requires states to ensure that domestic workers may exercise their freedom of association.
4. 434. In the light of the foregoing, the Committee notes that the refusal to register ASTAC is due to the fact that the founding members of the trade union organization do not work for the same employer which, in the Government’s opinion, is contrary to section 449 of the Labour Code, which stipulates that the leaders of workers’ associations of any kind must be employees of the pertinent enterprise. Observing that section 449 of the Labour Code does not directly prohibit the establishment of trade unions made up of workers from various companies, while other provisions of the Labour Code (especially section 440) broadly recognize the right of workers to establish organizations of their own choosing, the Committee draws attention to the fact that the free exercise of the right to establish and join trade unions implies free determination of the structure and membership of those trade unions and that workers must be able to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industry or craft union [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 333 and 334]. Furthermore, the Committee recalls that, even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, this minimum number should be reduced in the case of enterprise unions so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.
5. 435. In the context of the present case, emphasizing once again that the possibility of setting up a primary-level trade union comprising workers from various companies is of special importance in that it enables workers to exercise their freedom of association, especially in a context where there are a large number of small firms, the Committee requests the Government to take the necessary measures to ensure that national legislation complies with the abovementioned principles, and refers the legislative aspects of this case to the Committee of Experts on the Application of Conventions and Recommendations (CEACR).
6. 436. In this regard, the Committee takes due note of the Government’s statements regarding the recognition of a trade union of domestic workers who do not work for a single employer, in order that these workers may exercise their rights to freedom of association under ILO Convention No. 189. The Committee recalls that, with respect to rural and agricultural workers in general, Article 3(3) of Convention No. 141, ratified by Ecuador, provides that the acquisition of legal personality by organizations of rural workers shall not be made subject to conditions of such a character as to restrict the exercise of the right of rural workers to establish and, subject only to the rules of the organization concerned, to join organizations, of their own choosing without previous authorization. It is also worth recalling that paragraph 8(2)(b)(i) of the Rural Workers’ Organisations Recommendation, 1975 (No. 149) underlines the importance of the relevant laws and regulations being adapted to the special needs of rural areas and in particular that requirements regarding minimum membership, minimum levels of education and minimum funds shall not be permitted to prevent the development of organizations in rural areas where the population is scattered, ill-educated and poor. In this connection, the Committee notes with concern that many agricultural workers in Ecuador not only find it actually impossible to set up company unions owing to the minimum membership requirement which is conflicting with the structure of a sector where most production units are small, but that their efforts to overcome that obstacle by grouping together in sectoral organizations are frustrated as well. In this context, the Committee requests the Government to take the necessary measures to enable the registration of ASTAC without delay, and to ensure that, in the meantime, the necessary guarantees and protections are provided to its members. The Committee requests the Government to keep it informed in this regard.
7. 437. As for the second allegation in this case regarding several anti-union acts, including dismissals and threats, to prevent the establishment of the 7 February Association of Banana Plantation Workers of the Enterprise Frutas Selectas SA Frutsesa (hereinafter, the company trade union), the Committee takes note of the fact that the complainants allege that: (i) the constituent assembly of the company trade union took place on 22 June 2014 and was attended by 45 workers, as is confirmed by their signatures, and that it submitted a registration application to the labour administration on 14 August 2014; (ii) the company was notified of the registration application on 20 October 2014; (iii) between 23 and 29 October 2014, the administration received identically worded sworn testimony to the effect that 12 workers had been pressurized into saying that they had not taken part in the trade union’s constituent assembly and had no intention of participating in the establishment of any trade union organization; (iv) as from 24 October 2014, the banana company started to dismiss the leaders, including its general secretary, and the members of the company trade union who had not signed the sworn declarations; (v) on 28 October 2014, the legal representative of the banana company filed an appeal against the procedure establishing the trade union before the labour administration; (vi) on 26 November 2014, the labour administration refused to register the company trade union on the grounds that it did not have the minimum number of 30 members required by law; and (vii) on 11 May 2015, the general secretary of the trade union filed a criminal complaint against the company’s legal representative accusing him of threats of physical violence.
8. 438. The Committee also observes that the Government, in its comments, corroborates the facts reported by the complainants in regard to the founding of the company trade union, the receipt of sworn testimony from workers who denied that they had participated in the setting up of the trade union, the termination of the employment relationship of various founding members of the trade union and the refusal to register the trade union on the grounds that it did not have the minimum number of 30 working members required by the Labour Code. The Committee notes that, with regard to the aforementioned facts, the Government contends that: (i) 12 of the 45 founding members of the trade union were not taken into consideration because they had never been employed by the company; (ii) the sworn statements of 12 workers denying their participation in the setting up of the trade union were taken into consideration by the labour administration under the Notary Act establishing that notaries are officials vested with public trust; (iii) between 22 and 24 October 2014, the employment contracts of nine founding members of the company trade union were terminated by mutual consent, while two other members were summarily dismissed; and (iv) the cumulative effect of the various aforementioned factors meant that the trade union did not have the minimum number of 30 working members required by the Labour Code.
9. 439. Based on this, the Committee observes that the company trade union was not registered because, according to the labour administration, it had fewer than 30 members working for the company. The Committee notes that the complainants allege that the number of members of the nascent trade union was reduced by pressure exerted by the company, which resulted in practice in numerous founding members signing sworn statements denying that they had participated in the establishment of the trade union and also took the form of the termination of the contract of those members who refused to sign the sworn statements and of threats of physical violence towards the trade union’s general secretary. In this connection, the Committee notes that, although the Government was informed that the contracts of many founding members of the trade union had been terminated a few days after the employer had been notified of the registration application, it is silent on the reasons for this termination and says nothing about the holding of investigations to ascertain the truth of the allegations of discriminatory anti-union acts made by the complainants. In this respect, the Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions and that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [See, Digest, op. cit. paras 769 and 835]. While it refers to its previous recommendation regarding the minimum union membership required for registration, the Committee likewise requests the Government to ensure that an independent inquiry is held in the near future into the various anti-union acts that are alleged to have taken place around the time the company trade union was founded and that it inform the Committee of the inquiry’s findings and of any action taken by the public authorities thereupon, including in relation to the registration of the company trade union.
10. 440. The Committee further observes that the Government does not provide any information on the alleged threats received by the general secretary of the company trade union or on his criminal complaint of intimidation. Recalling that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [See Digest, op. cit, para. 44], the Committee trusts that in the near future the criminal complaint will lead to the appropriate investigations and decisions by the competent authorities. The Committee requests the Government to keep it informed in this regard.
11. 441. Lastly, the Committee regrets that it had to examine this aspect of the case in the absence of comments from the company concerned. The Committee therefore requests the Government to ensure that, through the pertinent employers’ organization, the company has the opportunity, if it so wishes, to express its opinion on the abovementioned allegations.

The Committee’s recommendations

1. 442. 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 take the necessary measures to ensure that national legislation complies with the principles of freedom of association concerning the minimum membership required to establish a trade union at the enterprise level and the possibility of setting up primary level trade unions comprising workers from various companies. The Committee refers the legislative aspects of this case to the CEACR.
   • (b) The Committee requests the Government to take the necessary measures to enable the registration of ASTAC without delay, and to ensure that, in the meantime, the necessary guarantees and protections are provided to its members.
   • (c) The Committee requests the Government to ensure that, in the near future, an independent inquiry is held into the various anti-union acts which took place around the establishment of the company trade union and to provide information on the inquiry’s findings and of any action taken by the public authorities, including in relation to the application to register the trade union.
   • (d) The Committee trusts that, in the near future, the criminal complaint filed by the general secretary of the aforementioned company trade union will lead to the appropriate inquiry and decisions by the pertinent authorities. The Committee requests the Government to keep it informed in this regard.
   • (e) The Committee requests the Government to ensure that, through the pertinent employers’ organization, the abovementioned enterprise has an opportunity, if it so wishes, to express its opinion on the allegations regarding the setting up of a company trade union within it.