Rapport intérimaire - Rapport No. 292, Mars 1994

Cas no 1729 (Equateur) - Date de la plainte: 17-AOÛT -93 - Clos

1. 742. The complaint in this case is contained in communications of the Latin American Central of Workers (CLAT) dated 17 August 1993, and of the Postal, Telegraph and Telephone International (PTTI), dated 29 August 1993. The Government sent its observations in a communication dated 13 October 1993. The CLAT submitted new allegations in a communication of 15 December 1993.
2. 743. Ecuador has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 744. In its communication dated 17 August 1993, the CLAT states that telecommunications workers in Ecuador are subjected to persecution, especially national and provincial leaders affiliated to the National Federation of Workers of Ecuador (FENETEL). The complainant organization alleges that Mr. Raúl Barahona Pasquel, Vice-Chairman of the Latin American Confederation of Telecommunications Workers and General Secretary of FENETEL, was denied trade union leave and accused of having been absent from his post for three consecutive days, for which he was dismissed after 38 years of service in the enterprise.
2. 745. The CLAT states further that in the City of Guayaquil, the SINTIETEL organization (a branch of FENETEL) publicly denounced infringements of the legislation on recruitment and that as a result the State Telecommunications Enterprise (EMTEL) requested that the Treasury Inspector's Office carry out a special audit in the enterprise, immediately granting approval (authorization of dismissal) for the dismissal for 11 trade union leaders, including Messrs. Néstor Pérez Valencia, Secretary-General of the organization, Johny Ramirez, Vicente Ayala and Piedad Loor. Lastly, it points out that the enterprise fails to comply with article 67 of the collective contract in force, concerning the grant of trade union leave to union leaders.
3. 746. In its communication dated 29 August 1993, the Postal, Telegraph and Telephone International (PTTI) points out that there is a central committee of EMETEL employees in Ecuador, known as the single central committee of EMETEL-CONAUTEL employees, grouping together the 11 trade unions organized in the EMETEL enterprise, and that according to the collective agreement the sole purpose of this body is to negotiate and sign collective agreements. The complainant organization points out that after the elections held in January 1993, Ms. Greta Hoyos, the Chairman of CONAUTEL, was replaced by Mr. Abdón Logroño Losada, Chairman of the Samuel Morse organization affiliated to the PTTI. Since then Mr. Logroño has been carrying out the duties of lawful Chairman of CONAUTEL. As a result of negotiations for a collective agreement and of the strong position maintained by CONAUTEL, the EMETEL company subsequently decided unilaterally, in violation of the agreement signed with CONAUTEL, to negotiate and quickly sign the collective agreement with Ms. Hoyos, who is General Secretary of a telephone operators' union of which 143 of the 7,800 EMETEL employees are members. The agreement contained terms which were much less favourable than those demanded by the other organizations which currently have a total of 6,400 members among the employees. It points out that the collective agreement was unlawfully registered by the Ministry of Labour, since it does not meet the requirements laid down by the law, and that members were ordered to pay a contribution of 5,000 sucres, which only the trade union general meetings - which were not held - were competent to decide. This contribution was thus deducted from workers' wages by the enterprise.
4. 747. Lastly, the complainant organization states that this situation gave rise to protests and strikes. As a result of these events, the enterprise arbitrarily dismissed the General Secretaries of FENETEL (Mr. Raúl Barahona Pasquel), FEDETEL (César Jara Pullas) and SINDO-IETEL (Mr. Fernando García), organizations belonging to CONAUTEL, and that Mr. Abdón Logroño Losada had been detained for 24 hours on false accusations made by Ms. Hoyos, who was never willing to confirm them in person to the police, thanks to which Mr. Logroño was released.
5. 748. In its communication of 15 December 1993, the CLAT points out that the contracts of eight trade union leaders of the EMETEL enterprise were terminated, including that of Mr. Leonoardo Torres Sarmiento, General Secretary of the National Federation of Telecommunications Workers of Ecuador (FENETEL). The complainant organization states that the authorities invoked the poor functioning of the telecommunications services as an excuse to justify this measure, but that the real reason was that the dismissed persons denounced the responsible persons in the enterprise for the mismanagement of funds destined towards the acquisition of telephone lines.

B. The Government's reply

1. 749. In its communication dated 13 October 1993, the Government rejects and describes as false and rash the complainants' statements that freedom of association was violated by failure to protect trade union leaders and the free exercise of their functions. Concerning the alleged dismissal of Mr. Raúl Barahona Pasquel, the Government states that this worker was neither removed from his post nor dismissed, but that on 15 April 1993 he handed in his resignation to the enterprise and requested permission to retire after having completed the length of service required by law, which the enterprise granted. Concerning the allegation that the Treasury Inspector's Office had granted approval (authorizations of dismissal) for the dismissal of 11 union leaders of SINTIETEL (City of Guayaquil), including the workers Néstor Pérez Valencia, Johny Ramirez, Vicente Ayala and Piedad Loor, the Government states that EMETEL requested the approval of the labour authorities of the City of Guayaquil in order to terminate the employment relationships with these workers; however, once the waiting period had expired, the authorities established that the enterprise had failed to give evidence of the grounds cited in requesting approval, which was denied as a result. The Government explains that the "approval" procedure (visto bueno) refers to a request submitted by the employer or the worker for the labour authorities to authorize termination of the employment relationship. In order to obtain this approval, the applicant must provide legal proof to the labour inspectorate that the prerequisites laid down in the Labour Code have been met, and that the accused party has exercised his right to defence. The grounds expressly cited in legal provisions refer to discipline, compliance with contractual obligations, aptitude for work and morality. The granting of approval has the effect of dissolving the employment relationship without giving rise to entitlement to any compensation, which is described as warranted dismissal. Unwarranted dismissal is, on the contrary, an illegal and arbitrary act.
2. 750. Regarding the alleged violation by the EMETEL enterprise of the collective agreement in force, by failing to grant trade union leave, it follows from the Government's observations that there have been no complaints in this respect, and that all matters relating to compliance with a collective agreement must be channelled through the joint committees and subcommittees (article 74 of the collective agreement), the next stage being to file a complaint with the labour authorities.
3. 751. Concerning the allegation presented by the Postal, Telegraph and Telephone International (PTTI), the Government states that on 8 December 1992 the single central committee of EMETEL-CONAUTEL employees was set up in accordance with Act No. 133. The workers employed in EMETEL informed the Pichincha labour inspector that this committee had been set up with the backing of 4,600 workers (i.e. the majority, since the total number of workers is 5,942) and that the office of chairman would be held by Ms. Hoyos and that of general secretary by Mr. Abdón Logroño Losada. In these circumstances, negotiations for the collective agreement were begun with this executive, and in February 1993 the chairman of the committee informed the Ministry of Labour that a general assembly of workers had decided to approve the removal of certain former leaders, including Mr. Abdón Logroño Losada. The enterprise requested the Ministry of Labour to indicate who was the chairman of the committee so that it could continue negotiations, and it was informed that the only executive which was legally registered was that of Ms. Hoyos.
4. 752. The Government states that in February 1993 a group of workers, including Mr. Abdón Logroño Losada, stated that Ms. Hoyos and the other officers of the executive had withdrawn from the committee of their own accord and had therefore been replaced; that they were the representatives of the single central committee and were backed by over 4,000 signatures of workers employed in EMETEL. Faced with a situation where two executives of the single central committee existed side by side, and with an apparent internal struggle for control, the labour inspectorate carried out an investigation and decided to reject the petition of Mr. Abdón Logroño Losada's group as being without factual or legal grounds, having ascertained by consulting handwriting experts that the 4,000 signatures of support presented by these workers were the same that had been presented by the executive headed by Ms. Hoyos. In other words, the complainants had attempted to deceive the labour authorities by presenting documents in support of their petition which in fact belonged to the original executive of 8 December 1992.
5. 753. Lastly, the Government states that the disputes which have arisen are between trade unions, that there is no dispute with the enterprise or with the Government, and that the mutual accusations brought before the authorities by both parties clearly show that they have nothing to do with freedom of association. The Government, in general terms and without referring only to the present case, deplores the fact that disagreements between trade union leaders lead them to adopt belligerent attitudes which ultimately lead to detentions. The Government states further that the EMETEL enterprise comprises 85 trade unions at national level, affilated to 11 national federations, which themselves are affiliated to the four central organizations recognized within the country, and that this complaint reflects the struggle for hegemony among the country's main central organizations of workers.

C. The Committee's conclusions

1. 754. The Committee observes that the allegations presented refer to the dismissal and application to the labour authorities for authorization of dismissals in the EMETEL enterprise; to the enterprise's failure to comply with the collective agreement by denying trade union leave; to the enterprise's recognition of the executive of the single central committee headed by Ms. Hoyos; and to the 24-hour detention of Mr. Abdón Logroño Losada, who headed the executive opposing that of Ms. Hoyos.
2. 755. As regards the allegation that the EMETEL enterprise negotiated a collective agreement with the body represented by Ms. Hoyos, who, it is stated, does not represent the single central committee as she had been replaced by Mr. Abdón Logroño Losada, the Committee observes that from the information available, the context of this case is that of a conflict between trade unions. The Committee notes that according to the Government, faced with a situation where two executives of the single central committee exist side by side (this committee being the body authorized to negotiate and sign collective agreements on the workers' behalf) and with an apparent internal struggle among trade unions for control, the labour inspectorate carried out an investigation and decided to reject the petition of Mr. Abdón Logroño Losada's group as being without factual or legal grounds, having ascertained by consulting handwriting experts that the signatures of support presented by these workers in February 1993 were the same signatures that had been presented by the executive headed by Ms. Hoyos in December 1992. In this respect, the Committee recalls that it is not competent to make recommendations on internal dissensions 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 (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 666). In the Committee's view, there is nothing to indicate in this case that the Government has interfered in the conflict among trade unions; on the contrary, when the enterprise requested information as to which was the legal executive with which it should bargain, the labour inspectorate carried out an investigation of the matter. In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
3. 756. As regards the alleged dismissal of trade union leader Mr. Raúl Barahona Pasquel (General Secretary of FENETEL), the Committee notes the Government's observations to the effect that this leader was not dismissed, but on 15 April 1993 handed in his resignation to the enterprise and requested permission to retire, having completed the length of service laid down by the law. In addition, regarding the alleged authorizations of dismissal of 11 trade union leaders of SINTIETEL (City of Guayaquil), the Committee notes the Government's observations to the effect that the dismissals were not authorized and that therefore the workers were not dismissed. Concerning the alleged dismissals of the general secretaries of FEDETEL and SINDO-IETEL, Messrs. César Jara Pullas and Fernando García, as a result of protests and strikes, the Committee observes that the Government has not replied. In these circumstances, the Committee requests the Government to communicate its observations on these alleged dismissals.
4. 757. Concerning the allegation to the effect that the EMETEL enterprise failed to comply with article 67 of the collective agreement in force, concerning the granting of leave to trade union leaders, the Committee notes that as far as can be seen from the Government's observations no complaints have been made on the matter and that all matters relating to compliance with a collective agreement should be channelled through the joint committees and subcommittees recognized in article 74 of the collective agreement in force, the next stage being to file a complaint with the labour authorities. The Committee observes further that the allegation that trade union leave was denied is too vague, and that the complainant organization has not given any specific information regarding this allegation (persons affected, dates, etc.). The Committee requests the complainant organizations to supply such specific information.
5. 758. Regarding the 24-hour detention of Mr. Abdón Logroño Losada, as a result of accusations brought by Ms. Hoyos, the Committee notes the Government's observations to the effect that both parties brought accusations against each other to the police. The Committee regrets that the Government has not explained the reasons for Mr. Logroño's 24-hour detention and requests it to communicate detailed information on this allegation.
6. 759. Finally, as regards the new allegations presented by the CLAT concerning the dismissal of eight trade union leaders from the EMETEL enterprise, including the General Secretary of the National Federation of Telecommunications Workers of Ecuador (FENETEL), Mr. Leonoardo Torres Sarmiento, the Committee observes that these allegations were transmitted recently. It therefore requests the Government to furnish its observations on these allegations as quickly as possible.

The Committee's recommendations

1. 760. 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 communicate its observations on the alleged dismissals of the General Secretaries of FEDETEL and SINDO-IETEL, Messrs. César Jara Pullas and Fernando García, as a result of protests and strikes.
   • (b) Concerning the allegation regarding failure to grant leave to trade union leaders, the Committee requests the complainant organizations to provide specific information in this regard.
   • (c) The Committee regrets that the Government has not explained the reasons for the 24-hour detention of Mr. Logroño and requests it to communicate detailed information on this allegation.
   • (d) Observing that the new allegations presented by the CLAT regarding the dismissal of eight trade union leaders from the EMETEL enterprise, including the General Secretary of the National Federation of Telecommunications Workers of Ecuador (FENETEL), Mr. Leonoardo Torres Sarmiento, were transmitted recently, the Committee requests the Government to furnish its observations on these allegations as quickly as possible.