Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ecuador (Ratification: 1959)

The Committee refers to its comments under Convention No. 87 respecting protection against acts of anti-union discrimination at the time of recruitment, as follows:

The Committee takes note of the Government's report.

1. For many years, the Committee has been referring to the following provisions of the legislation which were incompatible with the requirements of Conventions Nos. 87 and 98:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443, paragraph 11, of the Code);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

The Committee recalls that, at the Government's request, an advisory mission visited Ecuador (November-December 1989) to examine, inter alia, questions relating to the application of Conventions Nos. 87 and 98. According to the mission's report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources, drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee noted that, according to the Government's report, these drafts were to be submitted immediately to Congress with the support of the Executive and its recommendation that they be adopted.

In this connection, the Government indicates in its latest report that the drafts prepared jointly by the above mission and the Government were formally submitted to the Secretariat of the Congress, but that it cannot guarantee that they will become law. Furthermore, the Government states in its report that, at the initiative of the Minister of Labour and Human Resources, labour experts are discussing the enactment of a new law to cover the unionisation of public employees in general.

The Committee stresses the importance of the provisions of the legislation which are incompatible with the requirements of Conventions Nos. 87 and 98, and asks the Government to report on progress with regard to the drafts submitted to Congress and on the status of the work to draft legislation on the trade union rights of public employees. It hopes that in its next report the Government will be able to indicate that there has been progress in the application of these Conventions.

2. Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in 1988. The CEDOC referred to a number of provisions which the Committee has already criticised and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the bye-laws of incipient organisations and, according to the CEDOC, decisions concerning refusal to register are illegally delegated to officials of a lower category.

The Government indicates that the CEDOC's comments refer to the period of the previous Government and that it is therefore virtually impossible for the present Government to give a detailed account of the activities of the Office of Trade Union Organisations during that period. The Government denies that decisions concerning registration are illegally delegated to officials of a lower grade.

In view of the Government's statement, the Committee invites the CEDOC to indicate whether its comments on the application of the Convention which it made when the former Government was in power still apply and, if so, to specify actual cases of infringements of the Convention.

The Committee notes that the Ecuadorian Confederation of "Classistas" Organisations (CEDOC) sent comments in 1989 which emphasised that General Clause 12 of the State's 1988-89 budget obstructs collective bargaining.

In this respect, the Committee notes that this General Clause provides: (a) for a report by the Ministry of Finance on draft collective agreements to determine, on the basis of the budget situation and the parties concerned, the limits up to which the public sector institution concerned may negotiate; (b) for a report by the Co-ordinating Office for Labour Matters of the President of the Republic on the draft collective agreement; (c) and for the wage increases in the public sector provided for in collective agreements not to exceed similar levels applied to public servants in general.

The Government states in its report that the State Budget contains a series of items with specific limits that may not be exceeded and that the intervention of the Ministry of Finance is intended to prevent this; the use of such funds for other purposes is considered to constitute the offence of "misappropriation of public funds" for which the cashiers, treasurers, accountants and chiefs of offices are held responsible.

The Committee considers that in the case of public servants who are not engaged in the administration of the State, bargaining rights must be protected. Where a state budget is set which purports to limit the money available for wage settlement, prior discussion with the nominal employer and the trade union organisations concerned are important. Subsequent bargaining at the workplace should also retain as much flexibility as possible so that it enjoys a substantial measure of effectiveness. The Committee asks the Government to supply in its next report information on progress achieved in this respect.