Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ecuador (Ratification: 1967)

The Committee notes the comments of 4 August 2011 by the International Trade Union Confederation (ITUC) on the application of the Convention. It requests the Government to send its observations thereon, and on the serious allegations made by the ITUC in 2009 concerning repression by the police and the army of a demonstration organized by the trade union federations in 2006, that led to serious injuries and arrests, and on the alleged threats and acts of intimidation against leaders of the Workers Confederation of Ecuador (CTE) and the United Confederation of Workers of Ecuador (CEDOCUT).

The Committee notes the Government’s reply to the International Organisation of Employers’ (IOE) comments of 2009. It also notes the comments of 1 September 2011 from the National Federation of Chambers of Industry of Ecuador, concerning the position of the ILO Employers’ group regarding the right to strike.

The Committee also notes the report of the technical cooperation mission carried out in Quito from 15 to 18 February 2011 during which there was an examination of the matters raised by the National Federation of the Enterprise Petróleos del Ecuador (FETRAPEC) on 24 August 2009, and the arguments submitted by FETRAPEC to the Committee on Freedom of Association in Case No. 2684. The Committee notes the information gathered during the abovementioned mission, and in particular the information provided by the Government to the effect that a process has begun to reform the Labour Code and the Government has undertaken to consult the ILO in the course of that process.

New Constitution

In its previous observation, the Committee noted that some provisions of the new Constitution raise problems of compatibility with the Convention. Specifically:

• -article 326(8), which provides that “the State shall encourage the creation of organizations of men and women workers and of men and women employers, in accordance with the law; and shall promote democracy, participation and transparency in their running and alternation in their leadership”. The Committee notes the Government’s statement that: (1) interference in the internal affairs of organizations, whether of employers or of workers, cannot be inferred from the Constitution, since such organizations have the right to elect their representatives in full freedom and the right to organize their own administration; and (2) changeover of leadership will secure for organizations a future marked by participation, transparency and democracy. In this respect, the Committee once again points out that according to Article 3 of the Convention, decisions as to the alternation of members of executive committees should lie solely with the organizations of workers and employers and their members. While noting the information sent by the Government, the Committee requests it to take the necessary measures to repeal or amend this provision so as to allow a right to re-election for officials of workers’ and employers’ organizations;
• -article 326(12), which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee again requests the Government to take the necessary measures to repeal or amend this provision so as to ensure that compulsory arbitration is possible only in the instances cited above;
• -article 326(15), which prohibits suspension of public services in education, social security, the production and processing of hydrocarbons and the transportation and distribution of fuel, and provides that the law shall set limits to ensure the running of such services. The Committee recalls that the right to strike may be restricted or prohibited only: (1) for public servants exercising authority in the name of the State; (2) in essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); or (3) in the event of an acute national or local crisis. The Committee further recalls that in order to avoid damage that is irreversible or out of all proportion to the occupational interests of the parties to the dispute, and in order to avoid damages to third parties, i.e. the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to take the necessary measures to amend article 326(15) to ensure that the right to strike may be exercised in these services, with the possibility of minimum services being established.

Pending legislative issues

The Committee recalls that for many years it has been requesting the Government to take measures to repeal or amend the following provisions of the law:

Article 2 of the Convention. Right of workers to establish organizations without prior authorization.

• -sections 450, 459 and 466 of the Labour Code establishing a minimum requirement of 30 workers for the creation of associations, works committees or assemblies to organize works committees;

Article 3.Right of organizations to elect their representatives in full freedom.

• -section 466(4) of the Labour Code requiring Ecuadorian nationality to become a trade union officer.

Right of organizations to organize their activities and formulate their programmes.

• -section 26(g) of the Codification of the Framework Act on the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration, which prohibits work stoppages on any grounds in public services which may not be deemed essential in the strict sense of the term (education, social security, hydrocarbon production, fuel processing, transportation and distribution, and public transport) and provides for dismissal for failure to observe the prohibition;
• -section 522, second paragraph, of the Labour Code regarding the determination of minimum services by the Minister of Labour in case of disagreement between the parties in the event of a strike;
• -section 505 of the Labour Code which implicitly denies federations and confederations the right to strike;
• -Decree No. 105 of 7 June 1967 establishing the imposition of prison sentences for participation in unlawful work stoppages and strikes.

The Committee hopes that in the process now under way to reform the Labour Code – for which technical assistance was provided by the Office – the Government will take account of all the comments the Committee has been making for years and requests the Government in its next report to provide information on all developments in this regard. The Committee also once again requests to the Government to take all necessary measures to amend section 26(g) of the Codification of the Framework Act of the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration, and Decree No. 105 of 7 June 1967.

The Committee is raising other points regarding the public sector legislation recently adopted in a request addressed directly to the Government.