Observation (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)

The Committee notes the observations from the International Organisation of Employers (IOE) received on 1 September 2014. The Committee also notes the joint observations from Public Services International (PSI)-Ecuador, the Standing Inter-Union Committee and the National Federation of Education Workers (UNE), received on 4 September 2014, which state in particular that: (i) sections 345 and 346 of the new Penal Code impose severe penalties for strike action in the public sector; (ii) the draft Labour Relations Code and the draft amendments to the Constitution submitted on 26 July 2014 do not comply with the Convention; and (iii) Carlos Figueroa, former executive secretary of the Ecuadorian Medical Federation, was detained on 22 July 2014 despite the precautionary measures handed down by the Inter-American Commission on Human Rights. Lastly, the Committee notes the observations from the International Trade Union Confederation (ITUC), received on 1 September 2014, referring to issues examined by the Committee and reporting the detention of Fernando Villavicencio, a former trade union official in the petroleum industry, in addition to Carlos Figueroa. The Committee requests the Government to send its comments on the aforementioned observations.

The Committee notes the Government’s reply to the ITUC’s observations made in 2013 and those of the PSI from the same year. The Government indicates in particular that the Criminal Chamber of the National Court of Justice overturned the eight-year prison sentence for Ms Mery Zamora, former president of the National Federation of Education Workers, for instigating the stoppage of a public service.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. Impossibility of establishing more than one trade union organization in the state administration. With regard to article 326.9 of the Constitution, which provides that, for all labour relations matters in state institutions, the labour sector shall be represented by a single organization, the Committee notes with concern the Government’s indication that this provision seeks to prevent the formation of several organizations that pursue the same ends and to ensure the existence of a single organization that is strong and solid. The Committee recalls that the right of workers to establish organizations of their own choosing, as laid down in Article 2 of the Convention, implies that trade union pluralism should be possible in all cases, including in the public service, and hence the situation of having a sole trade union imposed by the law is not in conformity with the provisions of the Convention. Emphasizing the importance of the possibility for workers to be able to change or establish new trade unions, for reasons of independence, effectiveness and also ideological affinity, the Committee requests the Government to amend article 326.9 of the Constitution in such a way as to comply with the provisions of Article 2 of the Convention, and to provide information on any developments in this respect.

Articles 2 and 3 of the Convention. Legislative matters that have been pending for several years. For several years the Committee has been making comments on various provisions of national law with a view to ensuring their conformity with Articles 2 and 3 of the Convention:

• -Excessive number of workers (30) required for the establishment of associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee notes the Government’s indication that the Committee’s comments will be taken into account as part of the current reform of labour legislation. The Committee therefore trusts that sections 443, 452 and 459 of the Labour Code will be amended accordingly, and requests the Government to provide information on any developments in this respect.
• -Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee notes the Government’s indication that sections 443 and 466 of the Labour Code do not contain the requirement of Ecuadorian nationality to become an officer of a union executive committee. However, the Committee observes that section 459(4) of the Labour Code does impose the requirement of Ecuadorian nationality to become an officer of an enterprise committee. The Committee therefore requests the Government to amend section 459(4) of the Labour Code accordingly, and to provide information on any developments in this respect.
• -Right to re-election for officers of workers’ and employers’ organizations. The Committee notes the Government’s indication that: (i) Ecuadorian law clearly recognizes that the election of trade union officers is a matter for the union concerned; (ii) the alternation in leadership established in article 326(8) of the Constitution of the Republic is necessary for promoting democracy and eliminating discrimination and the perpetuation of power. The Committee recalls that it considers any legislative provision, regardless of its form, that restricts or prohibits re-election to trade union office to be incompatible with the Convention. The Committee therefore requests the Government once again to take the necessary steps to amend article 326(8) of the Constitution accordingly, and to provide information on any developments in this respect.
• -Right of federations and confederations to organize their activities and formulate their programmes. The Committee notes the lack of comments from the Government regarding the need to amend section 498 of the Labour Code, which implicitly denies the right to strike for federations and confederations. The Committee recalls that denial of the right to strike for federations and confederations creates difficulties in the application of Articles 3 and 6 of the Convention regarding the rights of federations and confederations. The Committee therefore requests the Government once again to take the necessary steps to amend section 498 of the Labour Code, and to provide information on any developments in this respect.

Article 3 of the Convention. Prison sentences for stoppage or obstruction of public services. The Committee notes that section 346 of the new Penal Code adopted on 3 February 2014 provides for imprisonment of one to three years for any person who obstructs, hinders or stops the normal provision of a public service or violently resists the restoration thereof or occupies a public edifice or installation by force. The Committee notes with concern that the abovementioned section includes organization of peaceful strikes or participation therein as a criminal offence. The Committee recalls that no criminal penalties should be imposed on workers for participation in a peaceful strike and hence on no account should prison sentences or fines be imposed. Such penalties are only possible if acts of violence against people or property or other serious offences covered by the penal legislation are committed during the strike (for example, failure to assist a person in danger or inflicting deliberate injury or damage on persons or property). The Committee also recalls that for many years it has been calling for the revision of Decree No. 105 of 7 June 1967 establishing the penalty of a prison sentence for any person participating in unlawful work stoppages or strikes. The Committee therefore requests the Government to take the necessary steps to amend the new Penal Code and Decree No. 105 of 7 June 1967 accordingly, and to provide information on any developments in this respect.

While noting that, on 15 November 2014, the President of the Republic announced a proposal for revision of various aspects of the Labour Code, the Committee hopes that the Government, in consultation with the most representative workers’ and employers’ organizations, will adopt the necessary measures to reform the legal and regulatory provisions referred to above, and requests the Government to provide information on any developments in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

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