Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

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

Article 3 of the Convention. Registration of trade unions. Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013). The Committee notes that the joint observations of the National Federation of Education Workers (UNE), Public Services International-Ecuador (PSI-E) and the United Front of Workers (FUT), received on 23 August 2015, refer to Executive Decree No. 16 and allege that: (i) Executive Decree No. 16, despite the indications by the Government in previous reports, does indeed apply to trade unions, as illustrated by the refusal to register the new executive committee of the UNE on the grounds of that Decree, and the inclusion of many trade unions in the register established under the terms of the Decree; and (ii) the Decree is in violation of the guarantees of the Convention by establishing various reasons for the administrative dissolution of organizations, such as interference in public policies or the failure to provide information periodically. The Committee notes the Government’s indication in its report that: (i) Executive Decree No. 16 does not apply to trade unions, but to corporations, foundations and organizations engaged in social management or control; (ii) trade unions are governed by their statutes and by the provisions of the Labour Code; and (iii) the Ministry of Education refused the registration of the new executive committee of the UNE on the basis of Executive Decree No. 16 on the grounds that the UNE was not registered as a trade union.

With regard to the scope of application of Executive Decree No. 16, the Committee notes that: (i) the Government indicates that the Decree’s inapplicability to trade unions only refers to workers’ organizations governed by the Labour Code, and not to associations of public employees, which remain outside the scope of the Labour Code; and (ii) the provisions of the Decree were applied to the UNE, which groups together public employees. The Committee notes from this information that occupational associations of public employees, which are fully protected by the guarantees of the Convention, are governed by Executive Decree No. 16. The Committee therefore requests the Government to provide clarification or other comments on the allegation that many trade unions of workers governed by the Labour Code are included in the register established by Executive Decree No. 16.

With reference to the content of Executive Decree No. 16, and the denunciations made by the trade unions, the Committee notes the indication by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in Case No. ECU 1/2013, that certain provisions of Executive Decree No. 16 are of particular concern, especially those setting out broad justifications for the dissolution of associations, such as engaging in party political activities (reserved for political parties and movements registered with the National Electoral Board), activities interfering in public policies which prejudice the internal or external security of the State and activities jeopardizing public peace (section 26(7) of the Decree). Recalling that the defence of their members’ interests requires workers’ organizations to be able to express their views on the Government’s economic and social policy, and that Article 4 of the Convention prohibits the dissolution or suspension of organizations by administrative authority, the Committee requests the Government to provide information on the applicability of the grounds for administrative dissolution set out in Executive Decree No. 16: (i) to occupational organizations of public employees; and (ii) to workers’ trade unions governed by the Labour Code.

Right to re-election of officers of employers’ and workers’ organizations. With reference to article 326(8) of the Constitution, which provides that the State shall promote the democratic, participatory and transparent operation of employers’ and workers’ organizations, including through alternation of their officers, the Committee notes the Government’s indication that: (i) neither the Constitution nor the Labour Code establish limits on the re-election of the officers of workers’ organizations; and (ii) practice shows that there are no limits in this respect. While recalling that any legislative provision, irrespective of its form, which restricts or prohibits re-election to trade union office is incompatible with the Convention, and noting the Government’s statements that article 326(8) of the Constitution of Ecuador does not imply any restriction in this regard, the Committee requests the Government to continue providing information on the functioning in practice of trade union elections.

Compulsory time limits when convening trade union elections. The Committee notes that the UNE, PSI-E and FUT denounce the fact, as they did in their 2014 observations, that section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, is in violation of the independence of trade unions by providing that trade union executive committees shall lose their powers and competences if they do not convene elections within 90 days of the expiry of the mandate as set out in the statutes of their organizations. The trade unions add that, under certain conditions, in accordance with their rules, trade unions may be compelled to extend the functions of their executive committees. Emphasizing that trade union elections are an internal matter for the organizations which should be regulated primarily by their rules, the Committee requests the Government to provide its comments on the observations made by the trade unions referred to above and to provide information on the application of section 10(c) of Ministerial Decision No. 0130.

Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 24(h) of the Basic Act on the Public Service (LOSEP) and sections 24 and 31(3) of the Basic Act on Public Enterprises (LOEP), which prohibit stoppages in a wide range of public services. In this regard, the Committee noted that article 326(15) of the Constitution, which provides 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 notes the Government’s indication that: (i) sections 514 and 515 of the Labour Code establish procedures for determining minimum services in the event of a strike in institutions and enterprises which provide services of social or public interest; and (ii) in the absence of agreement between the employer and the trade union, the arrangements for the provision of minimum services shall be established by the Ministry of Labour. In this regard, the Committee once again recalls that, in the event of disagreement concerning the determination of minimum services, the decision should be taken by a joint or independent body which enjoys the confidence of the parties, and not by the government authorities. The Committee therefore once again requests the Government to take the necessary measures to amend section 515 of the Labour Code as indicated above and to report on any developments in this respect. The Committee also notes that, although the Labour Code applies to workers in the private sector, as well as workers in the public sector, it does not cover public servants. The Committee therefore requests the Government to indicate the rules applicable to the determination of minimum services in the event of strikes called by associations of public servants. More generally, the Committee once again requests the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants.

Compulsory arbitration. In its previous comments, the Committee requested the Government to take the necessary measures to repeal or amend article 326(12) of the Constitution, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration, so as to ensure that compulsory arbitration is possible only in cases in which strikes may be limited, or even prohibited. The Committee notes the Government’s indication that, under the terms of sections 470, 474, 475, 479 and 481 of the Labour Code, arbitration by the Conciliation and Arbitration Court only occurs after the dispute has been submitted to mediation and conciliation. The Committee emphasizes that the failure of mediation and conciliation processes does not in itself justify the imposition of compulsory arbitration. The Committee recalls that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where the strike may be restricted or prohibited, that is in disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee therefore once again requests the Government to take the necessary measures to amend the legislative provisions so as to ensure that compulsory arbitration is possible only in the instances indicated above, and to provide information on any developments in this respect.

Articles 3 and 6. Right of federations and confederations to organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 498 of the Labour Code, which implicitly denies the right to strike of federations and confederations, by providing that only the enterprise committee or, in its absence, half plus one of the workers in the enterprise, may call a strike. In this regard, the Committee notes the Government’s indication that: (i) section 450 of the Labour Code provides that federations and confederations are governed by the precepts relating to trade unions; (ii) no provision in the Labour Code restricts or prohibits the right to strike of workers’ federations and confederations; and (iii) examples, such as the participation of the National Federation of Medical Personnel in the general demonstration of 19 November 2014, demonstrate that the right to strike of federations and confederations is respected in practice. While taking due note of these indications, the Committee requests the Government to indicate the rules applicable to strikes called by federations or confederations, including any ways in which these rules differ from the rules applicable to strikes called by trade unions.