Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report and observes that it does not contain specific information relating to the legislative issues that have been under examination. The Committee also notes the observations of the International Trade Union Confederation (ITUC) according to which the penalties established in law against violations of the labour legislation are not sufficiently dissuasive, which prevents workers from being able to exercise their trade union rights. The Committee requests the Government to provide its observations in this respect.

Pending matters. The Committee once again recalls that it has been making comments for several years on the following matters:

–           the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination in relation to recruitment;

–           the need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations including not more than 50 per cent of the workers subject to the Labour Code may negotiate, on their own or jointly, on behalf of their own members;

–           the need for public teaching staff and the heads of educational institutions, and for staff who perform technical and occupational duties in the education sector who are governed by the Higher Education Act (Act No. 2000-16) and the Act on educational careers and posts in the public teaching sector (Act No. 94 of 1990) to benefit from the right to organize and collective bargaining, not only at the national level, but also at the local and establishment levels. The Committee noted in its previous observation that, under the terms of section 5(d) of Act No. 94, teachers enjoy the right to freedom of association for the purposes of studying, participation in the planning and implementation of education policy and for the defence of their occupational interests. The Committee nevertheless notes that the legislation does not establish the right of teachers to collective bargaining. The Committee recalls that all personnel in the public administration who are not engaged in the administration of the State should enjoy the right to collective bargaining and, in this respect, considers that teachers are not engaged in functions related to the administration of the State and that they should therefore be able to engage in collective bargaining with a view to regulating their terms and conditions of employment through collective agreements;

–           the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in government departments and other public sector institutions and in private sector institutions that pursue social or public objectives enjoy the rights guaranteed in the Convention. The Committee notes with interest the deletion of this provision as a result of the recent adoption of the codified version of the Organic Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration.

Noting that it has been commenting on these provisions for many years, the Committee hopes that the Government will take the necessary measures in the near future to bring the legislation into full conformity with the Convention. The Committee requests the Government to keep it informed of any developments in this respect.

Furthermore, in its previous observation the Committee requested the Government to provide a copy of the Bill on the Organic Act respecting the civil service and administrative careers and the unification and standardization of public sector remuneration and the ruling by the Constitutional Court on its conformity with the Constitution. The Committee notes that the Government has provided a copy of both documents. The Committee notes that the above Organic Act was declared constitutional and that subsequently the codified version of the Organic Act respecting the civil service and administrative careers and the unification and standardization of public sector remuneration was approved supplementing and replacing the Bill, which was also declared constitutional. While noting that the above text repeals the prohibition on the establishment of trade unions, the Committee requests the Government to indicate whether, under the terms of the text, public servants and public sector workers in general may negotiate collective agreements and, if so, to explain the envisaged procedure for wage bargaining.

The Committee recalls that it noted previously that section 94 of Chapter XII of the Basic Act of 29 February 2000 on the economic transformation of Ecuador, which relates to amendments to the Labour Code, explicitly prohibits any revision or increase of the supplementing bonus or the compensation for cost-of-living increases, or the introduction of any other wage or remuneration supplement. The Committee also observed that section 95 of the same Act provides that the current amendments to the Labour Code are mandatory, unless there are provisions to the contrary in existing collective agreements or legally concluded contractual arrangements, for as long as they remain in force and unless otherwise agreed. In this respect, the Committee once again requests the Government to indicate in its next report whether, under sections 94 and 95 of the above Act, employers or their organizations and workers’ organizations continue to be subject to the limitations referred to above in freely concluding wage adjustment clauses through collective agreements.

Draft constitutional reform. The Committee notes the Government’s indication that the Minister of Labour and Employment announced that draft provisions would be submitted to the President for inclusion in the new Political Constitution of the Republic in the section on “Labour” for analysis and possible submission for consideration by the Constituent National Assembly. The Government is facilitating the examination of the draft text of this section, some of the provisions of which are not in full conformity with the Convention:

–           section 32(13) provides that employers with 15 or more workers who are members of a trade union organization shall be obliged to conclude a collective agreement when the organization so requests. In this respect, the Committee recalls that Article 4 of the Convention establishes the obligation to promote collective bargaining; and

–           section 32(14) provides that collective disputes shall be submitted to conciliation and arbitration tribunals, which shall be the only bodies competent for the classification, examination and resolution of claims. In this respect, the Committee recalls that, in general terms, recourse to compulsory arbitration when the parties have not reached an agreement through collective bargaining is only acceptable in the context of essential services in the strict sense of the term (that is, those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in the case of public servants engaged in the administration of the State.

The Committee requests the Government to keep it informed of developments relating to the draft text of the new Political Constitution and hopes that the latter will be in full conformity with the provisions of the Convention.

Draft reform of the Labour Code. The Committee has been informed of the existence of a draft reform of the Labour Code, formulated with the assistance of the ILO. The Committee understands that its examination is suspended in view of the constitutional reform process. This being the case, the Committee requests the Government to keep it informed of developments relating to the examination of this legislative text.

Pending comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC). The Committee recalls that in its previous comments it requested the Government to send its observations concerning the comments made by the ICFTU concerning the lack of collective bargaining rights of subcontracted or outsourced workers, the use of “blacklists” in the province of Los Ríos and anti‑union dismissals.

The Committee notes that the Government provides a copy of the Act amending the Labour Code (Act respecting outsourcing and supplementary services) of 23 June 2006, regulating employment mediation services and the outsourcing of supplementary services, and setting out the obligations of new enterprises devoted to employment mediation and the users of such services. The Committee requests the Government to confirm that workers in enterprises engaged in employment mediation and the outsourcing of supplementary services enjoy the right to organize and collective bargaining. The Committee also requests the Government to reply to the ICFTU’s other comments.

Finally, the Committee reminds the Government that in the context of the current legislative and constitutional reforms it may benefit from the technical assistance of the ILO with a view to ensuring their conformity with the Convention.