Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

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

A Government representative, Minister of Labour, thanked the Committee for having the opportunity to speak in front of it and declared that there were no problems of violations of workers' rights in Ecuador. The State respected and guaranteed trade union rights and freedom of association could be seen through the existence of bodies devoted to negotiation. He mentioned the following points concerning the draft legislation prepared by the technical assistance mission (referred to in the report of the Committee of Experts) which visited Ecuador in 1997:

-- concerning the amendment of the Civil Service and Administrative Act made so that civil servants could establish trade union organizations, he stressed that the workers concerned already had the right to organize. In Ecuador, there was a legislative overlapping between the Act and the Labour Code. The Civil Service Act gave a greater protection to those covered by it vis-à-vis the protection granted to other workers by the Labour Code. If one made the necessary amendments, this would imply in fact a regression. He invited a mission to go to the country to undertake a legal analysis which would confirm that there was an overlap;

-- concerning the repeal of section 60(g) of the same Act which prohibited civil servants from striking or supporting or participating in strikes, and from establishing trade unions, he stated that the Ecuadorean Constitution guaranteed the existence of trade unions. There could only be one trade union for each state entity, which did not imply that workers did not benefit from the right to organize. Concerning the right to strike, he stated that if strikes were authorized in the public sector, a minority would endanger the rights of the majority since, unlike in the private sector, there was no question of balancing the forces between employers and workers. Workers enjoyed the right to strike within the existing framework and there was compulsory mediation to resolve problems. He considered that a mission could make a note of this reality and that in this case also, there was an overlapping of legal institutions;

-- concerning the requested amendment of section 441 of the Labour Code so that in the event of refusal of registration, the trade union or association in question could appeal to the competent judicial authorities, he pointed out that the Labour Code stipulated that if the Labour Minister did not decide on a request for registration within 30 days, the trade union would be registered automatically. The amendment proposed was a violation of freedom of association;

-- concerning the amendment of section 443(11) of the Labour Code to the effect that organizations of a higher level enjoyed the right to express their opinions on the Government's economic and social policies, he stated that there was no trade union which did not have a provision in this respect in their by-laws, and that in Ecuador everyone could express their opinions and provisions were not needed in this regard since this right was enshrined in the Constitution;

-- concerning the requirement to be Ecuadorean in order to serve as a trade union official (section 455(4)), he stated that in Ecuador, the right to work was recognized for everyone and he did not know if that right was a labour or a political guarantee. A study needed to be carried out in this respect;

-- concerning the amendment of section 461 of the Labour Code on the dissolution by administrative measures of a works committee, he indicated that it was not necessary to appeal to a judicial body. The administrative channels provided for had to be used;

-- concerning the minimum service in the event of a strike (section 69 of Act No. 133), he stated that one had to find a clearer text than that which was proposed as an amendment;

-- concerning the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes, he pointed out that due to the wording of this Decree and the existing confusion between work stoppages and strikes, this Decree was not applied and was outdated. Being contradictory, it was never applied. There was no positive outcome of the steps taken before Congress to repeal this Decree. Consequently, an action should be instituted so that the judicial authorities declared this Decree to be unconstitutional;

-- concerning the need to reduce the minimum number of workers needed to be able to establish associations or works committees, he indicated that it was necessary for a committee to carry out a quantitative statistical study to determine the number which should be fixed;

-- concerning the need for civilian workers associated with or dependent on the armed forces to enjoy the right to join trade unions, he stated that a study would have to be carried out of the cases mentioned by the Committee of Experts;

-- concerning the deprival of the guarantee of stability to workers who took part in a solidarity strike (section 65 of Act No. 133), he pointed out that in Ecuador, there was no possibility of dismissing workers who respected the provisions pertaining to solidarity strikes;

-- concerning the implicit refusal of the right to strike for federations and confederations (section 491 of the Labour Code), he indicated that this refusal did not exist in the legislation. The possibility for works councils to declare a strike under the terms of the Labour Code did not constitute an implicit refusal. If there were no works councils, there was no violation of the right to strike; over 50 per cent of the workers in an enterprise could declare a strike.

Finally, he stated that the Ecuadorean Government was ready to comply with ratified Conventions.

The Employers' members noted that the Government representative had tried -- in a strange way -- to make this Committee believe that national legislation was in conformity with the requirements of Convention No. 87. The Government representative had not succeeded, especially in light of the report of the Committee of Experts which indicated the contrary. During an ILO mission in 1997, two Bills had been drafted providing for the repeal or amendment of certain legislative provisions which were the subject of comments by the Committee of Experts. The drafting of these two Bills constituted a positive approach to bringing national legislation into conformity with the provisions of the Convention. The content of these Bills had been described in detail in the report of the Committee of Experts and pertained essentially to the establishment and registration of trade unions, but also to the right of trade unions to organize their administration and activities as well as their right to express their opinions on the Government's economic and social policies in a peaceful manner. A control system should also have been established.

The question regarding the right to strike had been discussed. While the Employers' members differed from that of the Committee of Experts in this area, that did not prevent States from following the observations made by the Committee of Experts in this domain. In conclusion, it was clear that amendments to legislation should be carried out. For this reason it was surprising that these Bills had not been mentioned at all. On the contrary, the Government representative had tried to show that there had been no need for amendments to legislation which, in the view of the Employers' members, represented an improved situation. Apart from the Committee's stance concerning the right to strike, they endorsed the Experts' view that freedom of association and protection of the right to organize did not exist in Ecuador and that legislative changes were necessary. Therefore the Government should be urged by this Committee to review its current legislation urgently.

The Workers' members thanked the Government representative for the information he had provided. They recalled that this case had been discussed by the Committee on numerous occasions in 1985, 1987, 1988, 1992 and 1993. Several of the matters raised by the Committee of Experts had been dealt with in its report for a long time and had even been the object of special paragraphs in the past (in 1988 and 1989). Since then, several direct contacts missions and technical assistance missions by the ILO had been conducted in Ecuador in order to contribute to bringing the legislation into conformity with the Convention. Very limited progress had been made in 1991 through the adoption of Act No. 133 amending the Labour Code. However, very substantial discrepancies between law and practice on the one hand, and the Convention on the other, subsisted. This was why this Committee discussed this case in 1993. Since then, a new mission of technical assistance of the ILO had been conducted in Ecuador from 4-8 September 1997. This mission contributed to the drafting of two Bills aimed at improving the conformity between legislation and the Convention. Since then, however, the Workers' members, as well as the Committee of Experts, had noted that the Government did not refer to these two Bills in its report. On a more serious note, the Government had informed the Committee in its report that Bills dating from 1989 had been taken up again and submitted to Congress. This definitely constituted a large step backwards. The Workers' members could not accept such an attitude. It demonstrated a lack of a true political will to cooperate with the supervisory bodies. The entire Committee had always reacted against such an attitude. Technical assistance and direct contacts missions of the ILO were not intended to serve as a means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions. The Workers' members stressed that the discrepancies between law and practice on the one hand, and the Convention on the other, concerned very important issues. The Committee of Experts recalled them in its report. They included the following: the refusal to grant civil servants and employees in the armed forces the right to associate freely; the lack of efficient and independent remedies against refusals to register a trade union; the high number of members required to set up a trade union which raised concern in a system of enterprise trade unions; the substantial limitations for federations and confederations of the right to take action, including the right to call a strike; and administrative dissolutions of trade unions. Should the Committee of Experts not be able to note real progress before its next session, in particular, by the submission to and adoption by the National Congress of the Bills drafted in September 1997 and accompanying legislation, the present Committee would have to reconsider this case next year. During the Conference in 1999, the Workers' members would request that the conclusions be drafted and presented in a different way in the report. They demanded that the present conclusions reflected the concerns expressed and positions taken.

The Worker member of Ecuador indicated his full agreement with the comments of the Committee of Experts and thanked the Minister of Labour of his country for being present. For several years, observations, comments and direct requests had been addressed to the Government of Ecuador by the Committee and the supervisory bodies with a view to bringing law and practice into conformity with Convention No. 87. Following these demands, the Government had promised on several occasions to take the required measures to adopt the necessary legal reforms. Up until 1990, the comments by the Committee of Experts concerned the following legal provisions: the prohibition for civil servants to set up trade unions, to negotiate collective agreements and to go on strike; the prohibition for trade unions to involve themselves in political or religious activities; the obligation to be Ecuadorean in order to serve as a trade union official; the dissolution by administrative measures of works committees; the imposition of prison sentences on instigators of collective work stoppages and strikes; and the implicit refusal of the right to strike for federations and confederations. The fact that the Government had not honoured its undertakings caused the case of Ecuador to be referred to in special paragraphs in 1983, 1988 and 1989. For its part, the ILO had provided the assistance requested by the Government by way of conducting direct contacts missions in 1985 and 1989, and by way of providing the technical assistance mentioned by the Committee of Experts in its report. The Government had not followed up on any of the recommendations elaborated during these missions and, instead of the expected progress, new laws had been adopted which deteriorated the situation causing a questioning of the seriousness and credibility of the Government before the Conference Committee. In its report of 1991, the Government indicated that six Bills had been submitted to Congress including the Bills to amend the legislation with a view to bringing them into conformity with Convention No. 87. However, a few months after having submitted its report, the Government adopted Act No. 133 containing provisions which violated the principles of freedom of association and collective bargaining. The provisions of this law resulted in comments by the Conference Committee in 1992. More specifically, the comments concerned: the increase of the number of workers required to set up a trade union at the enterprise level which was raised from 20 to 30 (in Ecuador 60 per cent of the enterprises have less than 30 employees); the requirement that strikes be declared 20 days ahead of time; and the obligation that a minimum number of workers should continue to work in the enterprises during strike, which minimum would be determined by the Ministry of Labour should the parties not reach an agreement. This implied that in the public sector the Minister of Labour was at the same time a judge and a party.

In subsequent reports the Government indicated that it would insist that Congress follow up on the relevant draft law. During the months of January, June and July, 1996, however, the restrictions imposed on public servants for the establishment of unions and the negotiation of collective agreements and the declaration of strikes were incorporated in the Constitution. At the same time, a provision stipulating that "for industrial relations purposes in the public sector the workers will be represented by a unique trade union organization" was incorporated in the Constitution. Moreover, during September 1997, the Minister of Labour once again asked Congress to study six drafts presented in 1990 including one draft providing for the repeal of Decree No. 105 cited above. Contrary to what was stated by the Minister of Labour, Decree No. 105 was applied to trade union leaders in November 1997. Moreover, on 21 November of the same year, this Decree -- which allowed for the imposition of prison sentences in case of paralysis of activities -- was raised to the level of a constitutional provision. All these facts demonstrated the absence of the Government's political will to respect the provisions of Convention No. 87 in spite of the recommendations, comments and observations of the Conference. Instead of progress, there had been regression, in spite of the fact that the International Labour Office had invested human resources without obtaining the desired results. The Conference Committee had shown patience and unlimited tolerance and the persistence of such a situation could harm the efficiency of the supervisory machinery of the ILO. The speaker demanded that adequate measures be taken by the Government of Ecuador to modify the constitutional laws which were contradictory to the provisions of Convention No. 87.

The Worker member of Argentina stated that the report of the Committee of Experts contained a detailed analysis of the bills aimed at amending the Act on the Public Service and the Labour Code. While the Government in its report insisted that it had reactivated the procedures concerning these drafts, in November 1997 at an extraordinary session, Congress had adopted an amendment to the Constitution proscribing strikes in essential public sectors, including schools. If one added to that: the fact that public employees were not permitted to form trade unions; and that those who could have, were affected by the Act of 1991 which introduced changes to the minimum number of workers required for the formation of a trade union, the removal of permanent status from workers who engaged in solidarity strikes and the implicit negation of the exercise of the right to strike of federations and confederations, it could be seen that there have been no improvements brought about by the changes to the legislation which limits the full exercise of freedom of association. He therefore supported the legitimate calls of the workers of Ecuador and their trade union representatives.

The Worker member of the United States pointed out that Ecuador had been cited in special paragraphs by this Committee for violations of Conventions Nos. 87, 98 and 105 in 1987, 1988 and 1989 and that the ILO had sent direct contacts missions to Ecuador in 1985 and 1989. As the most recent report of the Committee of Experts indicated, another ILO mission visited Ecuador on the issue of compliance with Convention No. 87 in September 1997. If one looked at the record as a whole, violations of Convention No. 87 appeared to be continuing and the situation could even be getting worse if one considered certain aspects of the Ecuadorean labour law system. The Committee of Experts stated in its report that two legislative Bills were drafted in Ecuador in September 1997. One of the Bills would have improved the organizational rights of civil servants and given them a right to strike by amending certain sections of the Civil Service and Administrative Career Act. The second Bill would have removed the requirement of Ecuadorean citizenship for trade union leadership eligibility and would have removed individual criminal liability in cases of allegedly unlawful strikes. However, neither of these Bills had been enacted and the Committee of Experts had already expressed its surprise at the failure of the Government to even mention these proposals in a report. Moreover, in his statement to the Committee, the Government representative had not mentioned the enactment of any new legislation.

In any event, even if these two Bills were to be enacted in the near future they would still not remedy some of the most fundamental violations of freedom of association principles. More specifically, the first Bill which would have amended the Civil Service and Administrative Career Act, still maintained a very broad and vague definition of essential services where the right to strike could be prohibited. Moreover, the second Bill's amendment of section 443(11) of the Labour Code which would allow trade union organizations and leaders to peacefully express their opinions on the Government's economic and social policies but not allow them to become involved in political campaigns, would deprive workers of one of the most fundamental forms of free expression and association. Finally, the two Bills, even if enacted, would be entirely overruled by other constitutional and statutory provisions which totally undermined rights of association. For example, in November 1997, the legislative branch of the Ecuadorean Government, in an extraordinary session of Congress, passed constitutional amendments banning strikes in key public services, including schools. Moreover, article 49 of the Ecuadorean Constitution specifically prohibited strike action in the sectors of electrical energy, water, health care, processing, the transport and distribution of combustibles, education, public transport and telecommunications. In addition, nothing in the proposed legislation would directly change the 1991 law which increased the minimum number of workers legally necessary to form unions and work councils from 15 to 30. This law was obviously passed to make unionization at medium and small enterprises even more difficult. The speaker concluded by urging the Government to take due account of what had been stated in the Committee and to ensure that necessary changes were made to the Constitution and legislation to remedy all of the violations of freedom of association which had been mentioned.

The Worker member of Spain thanked the Minister for his presence and for the explanations provided. He noted that the report of the Committee of Experts suggested that draft laws were being elaborated which contained certain improvements with a view to bringing the legislation of Ecuador into conformity with Convention No. 87, but the Government made no mention of these drafts in its report. He further noted that the Government referred to other draft laws, but that it finally decided to shelve them and to adopt a draft which made the situation even worse. He stated that such an attitude was an insult to the intelligence of the members of this Committee and constituted an enormous step backwards. In conclusion he considered that a special paragraph would be appropriate in this case.

The Worker member of Colombia stated that he was deeply concerned by the serious conditions the workers in Ecuador had to face as regards freedom of association. In spite of the efforts by the Minister, it was clear that the situation remained obscure and that legislation in this country was not in conformity with the relevant ILO Conventions. Even so, it would be useful if the ILO could provide the necessary technical assistance to Ecuador to seek to halt the conditions from deteriorating in the near future. It was not appropriate in this case to maintain that legislation in Ecuador was in conformity with the Convention while at the same time referring to Bills aimed at bringing it into conformity. Such statements inevitably evoked misgivings that the Government did not have any coherent policy in this matter. The speaker stated his support of the statement by the Worker representative calling for a re-examination of this case next year.

The Worker member of France noted that the declaration by the Government member of Ecuador was not at all convincing and he still believed that there was much to be done before Convention No. 87 was fully applied in Ecuador. He emphasized that the word for strike did exist in the Constitution of Ecuador and considered that the disdainful tone used by the Ministry of Labour constituted an attack on this Committee. He considered that the declaration by the Minister demonstrated that the violations of Convention No. 87 were real and that they seemed to be becoming more serious. The ongoing privatization in Ecuador provided a rationale. Finally, while he was inclined to ask for a special paragraph concerning this case, he agreed to accept the proposal by the Workers' members requesting a discussion of this case again next year, should no progress be made.

The Government representative of Ecuador thanked the speakers who participated in the discussion. He noted that some of them had referred to the constitutional provision concerning the prohibition of the right to strike. He observed that a reading of the Constitution should be undertaken with great care: it spoke not of strikes but of the paralysis of activities and there was no reference to the right to strike. Under the division of power in Ecuador the Government exercised executive power, and, in this role, it had asked Congress, in May 1998, to consider the draft laws mentioned in the discussion to bring legislation into conformity with the Conventions concerning freedom of association. This was the obligation of the executive branch which did not have the power to legislate. Referring to the draft laws elaborated during the technical assistance mission of 1997, he stated that they had not been adopted because of the legal situation existing in Ecuador. Finally, he stated that the Government of Ecuador was ready to comply with everything that the ILO had put forward for the benefit of the workers and that there were no problems in relations between workers and employers.

The Committee took note of the oral statement made by the Minister of Labour and of the discussion that took place thereafter. The Committee recalled with great concern that the Committee of Experts had been formulating comments on important discrepancies, between national legislation and the Convention, such as the denial of trade union rights for public servants and civilian members of the armed forces, the high number of persons required to form a union, the prohibition on unions from taking part in any form of political activity, the requirement of Ecuadorean nationality to be elected leader of a trade union, the severe restrictions on the right of workers' organizations to formulate their programmes of action for furthering and defending the interests of workers, under penalties of imprisonment, and the administrative dissolution of trade unions. The Committee recalled that this case had been discussed by the Conference Committee on a number of occasions and that a new ILO technical mission went to Ecuador in September 1997 to help prepare draft laws to improve the application of the Convention. It deeply regretted that no mention had been made whatsoever by the Government in its last report of the above-mentioned drafts and that no progress at all had been made. The Committee urged the Government to initiate measures in order to bring its legislation into conformity with the Convention at a very early date. It expressed the firm hope that the Government would supply a report to the coming session of the Committee of Experts which contained detailed and complete information regarding the measures taken to this effect.