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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ecuador (Ratification: 1959)

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, which contain denunciations of violations of the Convention in practice, as well as legislative issues that the Committee is examining in the present observation. The Committee requests the Government to provide its comments on the denunciations of violations in practice contained in these trade union observations. The Committee also once again requests the Government to provide its comments on the allegations of anti-union dismissals in an enterprise in the banana sector contained in the 2014 ITUC observations.

The Committee also notes the report of the ILO technical mission which visited the country at the invitation of the Government, 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 on the application of the Convention by Ecuador.

Application of the Convention in the private sector

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes with interest that section 33 of the Act on labour justice and the recognition of household work (hereinafter, the Labour Justice Act), adopted in April 2015, which amends section 187 of the Labour Code, provides that the unjustified dismissal of members of the executive committee of a trade union shall have no effect. The Committee requests the Government to provide information on the application of this provision in practice.

In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the legislation includes a specific provision guaranteeing protection against acts of anti-union discrimination in access to employment. Noting that the Government’s report does not refer to this matter, the Committee once again requests the Government to take the measures requested and to report on any progress made in this respect.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee pointed out the need to amend section 221 of the Labour Code respecting the submission of the draft collective agreement, so that, where there is no organization with over 50 per cent of the workers as members, minority trade unions may, either alone or jointly, negotiate on behalf of their members. The Committee notes the Government’s indication that this provision of the Labour Code guarantees the representativity of the workers’ organization with which the collective agreement is concluded. Recalling that the requirement of an excessively high percentage of representativity in order to be allowed to participate in collective bargaining can hinder the promotion and development of free and voluntary collective bargaining in accordance with the Convention, the Committee once again requests the Government to take the necessary measures to amend section 221 of the Labour Code as indicated. The Committee also requests the Government to indicate the number of collective agreements concluded in recent years, and the number of workers and sectors covered.

Application of the Convention in the public sector

Articles 1 and 2. Protection against acts of anti-union discrimination and interference. In its previous comments, noting the absence of specific provisions respecting anti-union discrimination and interference in the Basic Act on the Public Service (LOSEP), the Basic Act on Public Enterprises (LOEP), the Basic Act on Higher Education (LOES) and the Basic Act on Intercultural Education (LOEI), the Committee requested the Government to take the necessary measures to ensure that the legislation applicable to the public sector, at least for workers not covered by the exception set out in Article 6 of the Convention, contains provisions prohibiting and establishing dissuasive penalties for any acts of anti-union discrimination and interference, as envisaged in Articles 1 and 2 of the Convention. The Committee notes that the ILO technical mission which visited the country in January 2015, in its report, noted the undertaking by the Ministry of Labour to include in the LOSEP a provision similar to that in the Labour Justice Act, which inserted into the Labour Code a provision establishing that the unjustified dismissal of trade union representatives shall be null and void. However, the Committee notes that the Government’s report, which refers to the general prohibition of discrimination in the Constitution and the LOSEP, does not contain information on this subject. In this regard, the Committee emphasizes that the procedure known as “compulsory purchase of redundancy”, as examined by the Committee on Freedom of Association in Case No. 2926, which allows the public administration, through the payment of compensation, to unilaterally remove public servants without having to indicate the grounds for the termination of the employment relationship, makes it even more necessary to adopt provisions affording effective protection to public servants against any acts of anti-union discrimination. The Committee therefore urges the Government to take the necessary measures to ensure that the legislation applicable to the public sector contains provisions prohibiting and establishing dissuasive penalties for any acts of anti-union discrimination and interference, as set out in Articles 1 and 2 of the Convention.

Articles 4 and 6. Personal scope of collective bargaining in the public sector. In its previous comments, the Committee noted that the LOEP, LOSEP, LOES and LOEI do not recognize the right to collective bargaining of public servants, and that only public sector workers governed by the Labour Code may engage in collective bargaining. Recalling that the Convention applies to public servants not engaged in the administration of the State (such as employees in public enterprises, municipal employees and employees in decentralized bodies, public sector teachers and air transport personnel), the Committee requested the Government to take the necessary measures to extend the right to collective bargaining to all the categories of public employees covered by the Convention. In this regard, the Committee notes the Government’s indication that public servants enjoy the right to organize and that they benefit from financial conditions that are better than those in the private sector, as well as a broad series of rights which respond to their needs. Emphasizing that, under the terms of the Convention, workers who are covered by the Convention have the right to engage in collective bargaining, irrespective of the other rights or benefits that they enjoy, the Committee urges the Government, in consultation with the trade union organizations concerned, to take the necessary measures for the revision of the LOSEP and related legislation so as to recognize the right to collective bargaining of public servants who are not engaged in the administration of the State.

The Committee further notes that the UNE, PSI–E, FUT and ITUC allege that a draft set of constitutional amendments, which have been under examination since June 2014 by the National Assembly, and which provide that public sector workers currently governed by the Labour Code will be subject to administrative laws governing the terms and conditions of work of public servants, has the objective of completely eliminating the right to collective bargaining in the public sector. The Committee notes that the draft constitutional amendments did not give rise to broad discussions before the ILO technical mission in January 2015 and were the subject of the conclusions and recommendations of the Committee on Freedom of Association in November 2015, in the context of Case No. 2970. The Committee notes that the Committee on Freedom of Association referred to the legislative aspects of the case.

In this regard, the Committee notes that: (i) with a view to unifying the legal regime governing workers in the public sector, these constitutional amendments envisage the deletion of the third indent of article 229 of the Constitution and the amendment of the 16th indent of article 326 such that wage earners in the public sector, who are currently governed by the Labour Code, will be subject to the LOSEP and the other administrative laws governing terms and conditions of work in the public sector; and (ii) the single transitional provision in the draft amendments provides that wage earners in the public sector recruited prior to the entry into force of the amendments will not lose the rights guaranteed by the Labour Code.

The Committee therefore observes that the adoption of the constitutional amendments would have the effect of extending the scope of application of the LOSEP and other administrative laws to all public sector workers, with the sole exception of wage earners in the public sector recruited prior to the entry into force of the amendments. Since, as noted above, the administrative laws referred to do not recognize the right of public servants to collective bargaining, the Committee notes with concern that the adoption of the constitutional amendments would result, with the legislation in its current form, in an extension of non-compliance of Article 4 of the Convention, which recognizes the right to collective bargaining of all public sector workers who are not engaged in the administration of the State. In this respect, the Committee considers, in the same way as the Committee on Freedom of Association, that the discussion of the draft constitutional amendments makes it even more urgent to amend the LOSEP and other administrative laws in order to bring them into conformity with the Convention. While noting that the Government informed the Committee on Freedom of Association that provisions would be adopted regulating more specifically the trade union rights of public servants, once the constitutional amendments had been adopted, the Committee notes that it has not received information on specific initiatives to amend the legislation as indicated. The Committee therefore urges the Government to launch immediately a process of consultation with workers’ organizations in the public sector with a view to taking the necessary measures to ensure that the draft constitutional amendments contribute to the application of Article 4 of the Convention and that the legislation applicable to the public sector is in conformity with that Article. Recalling that the Government may avail itself of ILO technical assistance, the Committee requests it to report on any developments in this regard.

Material scope of collective bargaining in the public sector. In its previous comments, the Committee noted that the LOSEP and the LOEP do not allow public sector workers who have the right to conclude collective agreements (public service workers governed by the Labour Code), to negotiate the level of their remuneration. Recalling that the Convention applies to public servants who are not engaged in the administration of the State, the Committee requested the Government to take the necessary measures to restore the right of public sector workers covered by the Convention to engage in collective bargaining with regard to their remuneration. In this respect, the Committee again notes the Government’s indication that public sector workers enjoy better financial conditions than those in the private sector, as well as a broad range of rights which respond to their needs. The Committee also notes that the new section 118 of the Labour Code, as amended by the Labour Justice Act adopted in April 2015, provides that the Ministry of Labour shall set remuneration and determine the scales of increments applicable to public servants and public sector workers. Recalling once again, in reply to the Government’s earlier comments, that there are arrangements which allow for the conciliation of the protection of the principle of equal remuneration for work of equal value in the public sector and the respect for budgetary allocations, on the one hand, and the recognition of the right to collective bargaining, on the other, the Committee urges the Government to take the necessary measures to restore the right to collective bargaining on all matters affecting the working and living conditions of public servants and public sector workers covered by the Convention, and to report on any developments in this regard.

Determination of the abusive nature of collective agreements in the public sector by the Ministry of Labour. The Committee recalls that the Committee on Freedom of Association drew its attention to the legislative aspects of Case No. 2684 (Report No. 372, paragraphs 282 and 285) relating to the violation of the right to collective bargaining as a result of empowering the Ministry of Industrial Relations through Ministerial Order Nos 00080 and 00155 to determine the abusive character of clauses in collective agreements in the public sector. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the determination of any abusive clauses in collective agreements in the public sector lies within the competence of the judicial authorities. The Committee once again notes the Government’s indication that the administrative authorities are not judges and parties to the revision of collective agreements in the public sector, as they provide equitable support to both employers and workers. The Committee highlights once again that, in light of the principle of free and voluntary collective bargaining enshrined in Article 4 of the Convention, the determination of the abusive nature of clauses in collective agreements in the public sector should only apply to cases of violation of the legislation or to very serious cases of distortion of the collective bargaining purposes, and that this determination should lie with the judicial authorities. The Committee therefore urges again the Government to take the necessary measures in this respect, including the repeal of the provisions of the national legislation which empower the Ministry of Labour to determine the abusive nature of collective agreements in the public sector. The Committee requests the Government to report on any developments in this regard.