Observation (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)

The Committee notes 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, and the observations of the International Trade Union Confederation (ITUC), received on 1 September 2015, with both of the trade union communications referring to issues examined in the present observation and the corresponding direct request. The Committee also notes that, in their observations, these Ecuadorian trade unions denounce the active role played by the Government in the establishment of the National Confederation of Public Sector Workers, the United Central Workers’ Organization and the Primary Teachers’ Network. The Committee requests the Government to provide its comments in this regard. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

The Committee notes the Government’s comments in reply to the 2014 observations of the PSI-E, the Standing Inter-Union Committee and the UNE concerning the prosecution of Mery Zamora (former President of the UNE), Carlos Figueroa (former Executive Secretary of the Ecuadorian Medical Federation) and Fernando Villavicencio (former trade union leader in the petroleum sector). The Government indicates that: (i) in its ruling of 27 May 2014, the National Court of Justice acquitted Mery Zamora, who had previously been found guilty of the destruction, deterioration, misuse, interruption or paralysis of public services; (ii) Carlos Figueroa was found guilty on 13 March 2014 of the crime of malicious defamation against the President of the Republic, and he was released from the Social Rehabilitation Centre of Quito on 17 January 2015; and (iii) Fernando Villavicencio was convicted of the same crime on 16 April 2013, and on 23 March 2015, following several appeals, the national court set aside the penalty imposed upon him. The Committee notes that, in their 2015 observations, the UNE, PSI-E and FUT, as well as the ITUC, denounce: (i) the violation by the State of the precautionary measures ordered by the Inter-American Commission on Human Rights for Carlos Figueroa; and (ii) the persistence of the persecution of Mery Zamora. The trade unions indicate that an appeal has been lodged against the acquittal of Mery Zamora by the Office of the Prosecutor General through an extraordinary protection appeal to the Constitutional Court, despite the fact that such legal action is intended to protect the fundamental rights of individuals, and not the interests of the State. The Committee expresses concern at the cases described above and recalls that the peaceful exercise of trade union activities, including the right to express opinions, should not give rise to charges, convictions, or extraordinary legal action by the Government against trade union leaders and members. The Committee requests the Government to take these principles fully into account in the future and to continue providing information on the situation of Mery Zamora.

The Committee notes the Government’s comments in reply to the observations of the PSI-E, the Standing Inter-Union Committee and the UNE of 2014 concerning the refusal to register the new executive committee of the UNE. The Government indicates that the Ministry of Education refused the registration of the executive committee on the grounds that it had not attached the documents required by section 21(a) of the Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013) and because it had not complied with various provisions of the statutes of UNE. While noting that matters of a general nature raised by Executive Decree No. 16 are examined in the direct request supplementing the present observation, the Committee recalls that, under Article 3 of the Convention, the election of trade union leaders is an internal matter for the organizations in which the administrative authorities should not interfere. In this regard, any issues concerning the lawful nature of trade union elections should first give rise to the application of the procedures set out in the organization’s statutes and, if they cannot be resolved internally, should be submitted to the courts. Based on the above, the Committee requests the Government to register the new executive committee of the UNE and to provide information on developments in this regard.

The Committee also notes the report of the ILO technical mission which, at the invitation of the Government, visited the country from 26 to 30 January 2015 as a follow-up to the discussion in the Committee on the Application of Standards of the International Labour Conference in June 2014 concerning the application by Ecuador of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee welcomes the fact that the Government agreed to broaden the mandate of the mission to the legislative issues raised by the Committee concerning the present Convention.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Impossibility of establishing more than one trade union in state bodies. In its previous comments, the Committee requested the Government to take measures to amend article 326(9) of the Constitution, which provides that for all purposes relating to industrial relations in state institutions, workers shall be represented by a single organization. The Committee notes the Government’s indication that: (i) both article 326(7) of the Constitution, which gives broad recognition to the right to freedom of association, and the provisions of the Labour Code, which are applicable to public sector workers, recognize the right of workers in the public sector, without distinction whatsoever, to establish organizations of their own choosing; and (ii) 1,532 trade unions of public sector workers are registered in the country. Taking due note of the Government’s indications, the Committee requests the Government to take the necessary measures to amend article 326(9) of the Constitution so as to bring it into conformity with Article 2 of the Convention and with the provisions of Ecuadorian legislation referred to above.

Excessive number of workers (30) required for the establishment of associations, enterprise committees, or assemblies for the organization of enterprise committees. In its 2014 report, the Government indicated that, during the current revision of the labour legislation, the Committee’s comments would be taken into account concerning the minimum number of workers required for the establishment of trade unions. Nevertheless, the Committee notes that the Basic Act on labour justice and the recognition of household work (hereinafter, the Labour Justice Act), adopted in April 2015, has not modified the minimum number of 30 workers required by the legislation. The Committee also notes the Government’s indication in its latest report that: (i) the Convention does not establish a specific minimum number of members, leaving their determination to the national authorities; and (ii) the minimum number of 30 members does not constitute an obstacle to the establishment of trade unions. The Committee recalls in this respect that: (i) under the terms of Article 2 of the Convention, workers shall have the right to establish organizations of their own choosing; (ii) as indicated in its 2012 General Survey on the fundamental Conventions, paragraph 89, while the legislation in countries which have ratified the Convention may regulate the exercise of this right by establishing a minimum number of members, the numbers should be fixed in a reasonable manner so that the establishment of organizations freely, as guaranteed by the Convention, is not hindered; and (iii) the Committee has generally considered that the requirement of a minimum number of 30 members to establish enterprise unions in countries in which the economy is characterized by the prevalence of small enterprises, hinders the freedom to establish trade unions. Noting that the country has a very high proportion of small enterprises and that the national trade union structure is based on enterprise unions, the Committee, since the legislative reform of 1985 which increased the minimum number of members from 15 to 30, has been requesting the Government to reduce the minimum number required by the legislation. The Committee therefore once again requests the Government to take the necessary measures to amend sections 443, 452 and 459 of the Labour Code, which stipulate various requirements and criteria for the establishment of associations, and to report any developments in this regard.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. In its previous comments, the Committee requested the Government to take measures to amend section 459(4) of the Labour Code, which establishes the requirement of Ecuadorian nationality to hold office in enterprise committees. In this regard, the Committee notes with satisfaction that section 49 of the Labour Justice Act has removed from the Labour Code the nationality requirement referred to above.

Election of workers who are not union members as officers of enterprise committees. The Committee notes that the ITUC, UNE, PSI-E and FUT denounce the fact that new section 459(3) of the Labour Code, adopted as part of the Labour Justice Act, provides that enterprise committees “shall be composed of any worker, whether or not a union member, who is registered on the lists for such election”, and thereby violates the independence of trade unions and allows interference by both the State and the employer in elections. The Committee observes that, under the terms of the Labour Code, the enterprise committee is one of the forms that may be taken by trade unions within the enterprise, with the officers of the enterprise committee being elected by all the workers in the enterprise who are unionized. Recalling that, under the terms of Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom, the Committee considers that: (i) the imposition by law that workers who are not union members may stand for election as officers of the enterprise committee is contrary to the trade union autonomy recognized by this provision of the Convention; and (ii) it would be acceptable for workers who are not union members to stand for office only if the specific rules of the enterprise committee envisage this possibility. The Committee therefore requests the Government to take the necessary measures to amend section 459(3) of the Labour Code to bring it into compliance with the principle of trade union autonomy, and to provide information on any progress made in this regard.

Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee requested the Government to take the necessary steps to amend Decree No. 105, of 7 June 1967, and section 346 of the Basic Comprehensive Penal Code, so as not to impose penal sanctions on workers carrying out a peaceful strike. In this regard, the Committee notes that: (i) the Government indicates that Decree No. 105 has not been part of Ecuadorian legislation since 1971; (ii) the Government’s report does not refer to section 346 of the Basic Comprehensive Penal Code; and (iii) during the ILO technical mission in January 2015, the officials of the Ministry of Labour indicated that section 346 of the Basic Comprehensive Penal Code was not intended to prohibit the right to strike, and discussed the possibility of that provision explicitly indicating that the specified acts do not include the peaceful exercise of the right to strike. Recalling that no penal sanctions should be imposed with respect to carrying out a peaceful strike but such sanctions should only be permissible where violence against persons or property, or other serious infringements of penal law have been committed, the Committee once again urges the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code as indicated above and to report any developments in this regard.

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