Rapport définitif - Rapport No. 405, Mars 2024

Cas no 3429 (Equateur) - Date de la plainte: 11-MAI -22 - Clos

Allegations: The complainant organizations allege the refusal of the Ministry of Labour to register a trade union and anti-union dismissals carried out by the Office of the President of the Republic

1. 309. The complaint is contained in a communication dated 11 May 2022 presented by Public Services International (PSI) and the National Confederation of Public Servants of Ecuador (CONASEP).
2. 310. The Government of Ecuador sent its comments on the allegations in three communications dated 3 February and 27 April 2023, and 10 January 2024.
3. 311. 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. Allegations of the complainant organizations

1. 312. In their communication of 11 May 2022, the complainants indicate that on 19 September 2020, the Trade Union of Workers of the Office of the President of the Republic of Ecuador (hereafter the “trade union”) was established by 34 workers, and that on 21 September 2020, the accreditation documents for the establishment of the trade union were sent to the Ministry of Labour (hereafter the “Ministry”) to start the registration process. However, the complainants allege that they have not received a response from the Ministry, despite the change in Government in May 2021.
2. 313. The complainants report that on 3 September 2021, Mr César Estrella Proaño, the Secretary-General of the trade union, filed an enforcement action for administrative silence against the Ministry and the Public Prosecutor with the District Administrative Court in the Metropolitan District of Quito.
3. 314. The complainants claim that on 28 December 2021, the Office of the President of the Republic, citing restructuring and the introduction of processes for the optimization of human talent, carried out the sudden dismissal of 26 workers, 11 of whom were part of the founding group of the trade union. According to the complainants, while none of the dismissed workers are part of the elected executive board, the purpose of the dismissals is to disable and dissolve the union, the recognition of which currently hangs on the arbitrariness of the Government, as the minimum legal requirement of 30 workers to establish a union is no longer met. The complainants request the recognition and registration of the union, as well as the reinstatement of its 11 dismissed members.

B. The Government’s reply

1. 315. In its communication of 3 February 2023, the Government states that, following the change in Government on 24 May 2021, it found over 2,100 applications regarding the establishment of trade union organizations, registration of executive boards, inclusion and exclusion of members, and reforms of union statutes, which had not been duly addressed by the previous authorities. The Government claims, however, that as of the above date, the new administration immediately started to address these applications in chronological order.
2. 316. The Government also indicates that, between 2020 and 2022, it issued a series of executive decrees postponing the deadlines for all administrative procedures under the Ministry, owing to the COVID-19 pandemic and the high contagion rates affecting all the private and public institutions in the country. It states that, in addition to the deferred procedures, there is a high demand regarding applications that are received on a daily basis by the Ministry’s Labour Organizations Directorate but that, despite the limited number of public employees available, significant work is being undertaken in order to address the backlog of applications. The Government insists that the delays in responses are not a result of negligent or arbitrary actions of the current administration.
3. 317. With respect to the application of 21 September 2020 in which the trade union requested approval of its statutes and the granting of legal status, the Government indicates that on 24 September 2020, the Labour Inspectorate of Pichincha erroneously identified the employer concerned in the registration process. It reports that this error was redressed through a memorandum issued on 2 February 2022 but that legal proceedings were under way regarding the application in question, as a result of the action filed by the trade union.
4. 318. In its communications of 27 April 2023 and 10 January 2024, the Government indicates that, in a ruling of 11 November 2022, the District Administrative Court in the Metropolitan District of Quito ordered the registration of the union. The Government reports that the Ministry submitted an application for clarification and expansion of the ruling, alleging that the order could not be carried out as it violated the legislation since the material requirements for the establishment of a trade union organization had not been met, and that this application was rejected by the above court in a decision of 19 January 2023. It reports that the Ministry applied for judicial review of this decision, and that the District Administrative Court in the Metropolitan District of Quito dismissed that application on 14 April 2023.
5. 319. The Government indicates that the Ministry complied with the above court decisions as it provided registration of the trade union’s statutes and granted it legal status on 21 November 2023, registering the list of its 39 founding members. It also reports that the Ministry registered the executive board of the trade union on 2 January 2024.
6. 320. With regard to the alleged anti-union dismissals, the Government states that no complaint for anti-union dismissal has been submitted against the Office of the President of the Republic, nor any other type of complaint by the workers who were dismissed on 28 December 2021.

C. The Committee’s conclusions

1. 321. The Committee notes that, in the present case, the complainants allege the refusal of the Ministry of Labour to register the Trade Union of Workers of the Office of the President of the Republic of Ecuador, as well as the anti-union dismissals of 11 workers who were part of the founding group of the above trade union by the Office of the President of the Republic of Ecuador. The Committee also notes that the Government provides information on the administrative and judicial procedures that resulted in the registration of the trade union on 21 November 2023 and also denies that the above-mentioned dismissals were of an anti-union nature.
2. 322. The Committee notes that, according to the complainants: (i) on 19 September 2020, 34 workers of the Office of the President of the Republic established the trade union; (ii) on 21 September 2020, the accreditation documents for the establishment of the trade union were sent to the Ministry to start the registration process; (iii) on 3 September 2021, as it had not received a response from the Ministry, the trade union filed an enforcement action for administrative silence with the District Administrative Court in the Metropolitan District of Quito; (iv) on 28 December 2021, the Office of the President of the Republic dismissed 26 workers, 11 of whom were founding members of the trade union, citing restructuring in order to optimize human talent; and (v) the purpose of these dismissals is to disable and dissolve the union, as they prevent it from meeting the minimum legal requirement of 30 workers to establish a trade union.
3. 323. With regard to the alleged refusal to register the trade union, the Committee notes that the Government states that: (i) in recent years, there have been delays in the processing of administrative applications by the Ministry, owing to the COVID-19 pandemic, the high number of applications and the lack of personnel; (ii) these delays are not related to any negligent or arbitrary action of the new Government, which took up office in May 2021 and immediately started to process the backlog of applications; (iii) during the trade union registration process, the Labour Inspectorate of Pichincha erroneously identified the employer in September 2020, and this error was rectified in February 2022 when the application had already been brought before the courts; (iv) in a decision of 11 November 2022, the District Administrative Court in the Metropolitan District of Quito ordered the registration of the trade union; (v) the Ministry submitted an application for clarification and expansion of the ruling, given that the order could not be carried out as it did not meet the material requirements for the establishment of a trade union organization, and the above-mentioned court rejected the application on 19 January 2023; (vi) the Ministry submitted an application for judicial review, which was dismissed by the same court on 14 April 2023, and (vii) the Ministry registered the trade union on 21 November 2023 and its executive board on 2 January 2024.
4. 324. While noting the Government’s indication that several factors, including the COVID-19 pandemic, the lack of resources of the Ministry and an error of the Labour Inspectorate, contributed to the delays in the treatment of the application for registration of the trade union, and that the Ministry subsequently submitted an appeal against a court order for registration issued on 11 November 2022, considering that the order could not be carried out as it violated the legislation since the material requirements for the establishment of a trade union organization had not been met, the Committee recalls that a long registration procedure constitutes a serious obstacle to the establishment of organizations and amounts to a denial of the right of workers to establish organizations without previous authorization [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 463]. It also recalls that the formalities prescribed by law for the establishment of a trade union should not be applied in such a manner as to delay or prevent the establishment of trade union organizations, and that any delay caused by authorities in registering a trade union constitutes an infringement of Article 2 of Convention No. 87 [see Compilation, para. 427]. Taking due note of the Government’s indication that the trade union was finally registered on 21 November 2023, the Committee expects that the above-mentioned criteria will be duly taken into account in the future.
5. 325. The Committee also notes that: (i) according to the complainants, the trade union failed to meet the requirement of 30 workers to be legally established after the dismissal of 11 of its members on 28 December 2021; and (ii) the Government invoked the failure to comply with material requirements in its appeal against the court order for registration of 11 November 2022. In this respect, the Committee recalls that it has already had the opportunity to indicate, in other cases related to Ecuador [see 371st Report, Case No. 2928, March 2014, para. 316], that the minimum number of 30 workers required to establish a trade union laid down in the Labour Code should be reduced. Recalling also the repeated requests of the Committee of Experts on the Application of Conventions and Recommendations in this regard, the Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to amend the provisions of the Labour Code that lay down this requirement and to ensure that workers are protected against any act of anti-union discrimination.
6. 326. With respect to the allegations of anti-union dismissals, the Committee notes that the complainants allege that the dismissals were carried out to prevent the trade union from having the sufficient number of members to be registered. In this regard, it recalls 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 Compilation, para. 1159]. The Committee further notes that the Government states that the workers who were dismissed on 28 December 2021 have not submitted any type of complaint against their dismissals. Noting that the complainants do not refer to any type of appeal filed to question the validity of the above-mentioned dismissals, nor to grounds or circumstances which may have prevented the submission of such actions, the Committee will not pursue the examination of this allegation.

The Committee’s recommendations

1. 327. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the criteria concerning the registration procedure for trade unions referred to in the conclusions will be duly taken into account in the future.
   • (b) The Committee once again requests the Government to take the necessary measures, in consultation with the social partners, to amend the provisions of the Labour Code that require a minimum of 30 workers to establish a trade union and to ensure that workers are protected against any act of anti-union discrimination.
   • (c) The Committee requests the Government to ensure that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention.
   • (d) The Committee considers that this case does not call for further examination and is closed.