Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

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

Article 2 of the Convention. Application of the Convention to public servants and their organizations. In reply to the Committee’s request for information in its previous comment, the Government indicates that the Basic Act concerning Public Enterprises (LOEP) does not prohibit the right to organize of public servants who are freely appointed and removed or of career public servants in public enterprises but merely excludes them from the right to engage in collective bargaining. The Committee notes this information, which is also considered in the context of the examination of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Moreover, the Committee notes the Government’s indication that 324 trade union organizations have been registered in 2014 in the public sector.

Registration of trade union organizations. The Committee notes the Government’s comments in reply to the 2013 observations from Public Services International Ecuador (ISPE) concerning the regulations for the functioning of the unified information system relating to social and civic organizations (Executive Degree No. 16 of 20 June 2013). The Government indicates that Executive Decree No. 16 seeks to improve procedures for establishing labour organizations, including creating a register, and that this does not undermine their autonomy. The Committee notes that the joint observations from the ISPE, the Standing Inter-Union Committee and the National Federation of Education Workers (UNE), received on 4 September 2014, denounce the failure to recognize, in accordance with Executive Decree No. 16, the new UNE leadership. The Committee requests the Government to send its comments on this matter.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and formulate their programmes. For several years the Committee has been making comments on certain provisions of national law with a view to ensuring their conformity with the Convention:

• -With regard to article 326(15) of the Constitution, section 24(h) of the Basic Act concerning the Public Service (LOSEP), and sections 24 and 31(3) of the LOEP, which prohibit the stoppage of a wide range of public services, the Committee notes the Government’s indication that it is not feasible to amend these provisions, since their purpose is to protect the welfare of the community and that any stoppage, including of a partial nature with the provision of minimum services, would violate the right to decent living standards. The Committee recalls that it considers that, except in the case of the armed forces and the police, whose members may be excluded from the scope of application of the Convention, the right to strike may be restricted or prohibited only: (1) for public servants exercising authority in the name of the State; (2) with regard to 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; and (3) in the event of an acute national crisis. While noting that article 326(15) of the Constitution, in providing that the law shall set limits to ensure the functioning of minimum services, appears compatible with the establishment of minimum services in the event of a strike, the Committee again requests the Government to take the necessary measures to clarify or amend the abovementioned provisions accordingly, and to provide information on any developments in this respect.
• -With regard to article 326(12) of the Constitution, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration, the Committee notes the Government’s indication that this involves an alternative method of dispute settlement in which dialogue between the parties plays the key role, preventing any escalation of the problem or the need for recourse to a judicial body. 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 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, and to provide information on any developments in this respect.
• -The Committee notes the lack of any comment from the Government on section 515, final paragraph, of the Labour Code, concerning the determination of minimum services by the Minister of Labour should the parties fail to reach agreement in the event of a strike. The Committee therefore requests the Government once again to amend this provision to ensure that, in the event of the parties’ failure to reach agreement, minimum services are determined by a joint or independent body which has the confidence of the parties, and to provide information on any developments in this respect.
• – The Committee also requests the Government to clarify to what extent the legislation in force recognizes the right to strike for public servants.

[The Government is asked to reply in detail to the present comments in 2015.]