Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 3 of the Convention. Right to re-election of officers of workers’ and employers’ organizations. With reference to article 326(8) of the Constitution, which provides that the State shall promote the democratic, participatory and transparent functioning of workers’ and employers’ organizations, including the alternation of their officers, the Committee recalled previously that any legislative provision which restricts or prohibits re-election to trade union office is incompatible with the Convention and it requested the Government to continue providing information on the functioning in practice of trade union elections. In this regard, the Committee takes due note of the Government’s reiterated indication that this constitutional provision does not authorize the State to interfere at any time in the trade union affairs of labour organizations and that there is no legal provision whatsoever establishing limits on the election of the officers of labour organizations.

Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Right to strike of public servants. In its previous comments, observing that public servants are not governed by the Labour Code, the Committee requested the Government to indicate the manner in which the legislation in force recognizes and regulates the right to strike of public servants. In this regard, the Committee notes the Government’s indication that article 326(16) of the Constitution, as amended in December 2015, explicitly recognizes the right to strike of public servants in accordance with the Constitution and the law, and that the Basic Act on the Public Service (LOSEP) is being revised to bring it into conformity with the reform of the Constitution. While welcoming the adoption of this new constitutional provision, the Committee notes that Public Services International (PSI) and the National Federation of Education Workers (UNE) provide with their observations the text of the Bill to reform the legislation governing the public sector, which is currently being examined by the National Assembly. The Committee observes that the text of the Bill that it has been able to examine contains significant restrictions on the right of organizations of public servants to organize their activities and to formulate their programmes with regard, among other matters, to: (i) the reasons for which a strike may be called; (ii) the majority required to call a strike; (iii) the applicability and determination of minimum services; and (iv) the mechanisms governing the ending of a strike. Emphasizing that the satisfaction of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, the Committee requests the Government to ensure that the right of organizations of public servants to organize their activities and to formulate their programmes is not unduly restricted. The Committee requests the Government to provide information on this subject and recalls that it may have recourse to the technical assistance of the Office.

Determination of minimum services in the event of disagreement between the parties. In its previous comments, the Committee requested the Government to take the necessary measures to amend section 515 of the Labour Code to ensure that, in the event of the failure of the parties to reach agreement concerning the determination of minimum services, the decision is not taken by the Government authorities, but by a joint or independent body which has the confidence of the parties. In this regard, the Committee notes the Government’s indication that: (i) the labour inspection services and Regional Labour Directorates, which exercise administrative authority in labour matters, do not act with bias in favour of the State, and, moreover, have clear legal obligations which they must fulfil subject to legal liability; and (ii) the establishment of a collegial body for this purpose would take longer and would hinder the exercise of the right to strike. The Committee wishes to emphasize that, without prejudice to the integrity and objectivity with which the labour administration services discharge their functions, the Committee has always considered that, in the context of a strike, these services, as they are part of the Government authorities, do not meet the necessary conditions to be able to comply with Article 3(2) of the Convention. Emphasizing the possibility of joint or independent bodies to flexibly and effectively determine minimum services in the event of disagreement between the parties, the Committee once again invites the Government, in consultation with the social partners, to amend section 545 of the Labour Code as indicated above. The Committee trusts that the principles referred to above will also be taken into consideration in the context of the examination of the Bill to reform the legislation governing the public sector.

Compulsory arbitration. With reference to article 326(12) of the Constitution, which provides that collective labour disputes shall, in all instances, be referred to conciliation and arbitration boards, the Committee requested the Government to take the necessary measures to amend the legislative provisions so as to ensure that compulsory arbitration is possible only in cases in which strikes may be limited, or even 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. In this regard, the Committee notes the Government’s indication that: (i) under the terms of article 95 of the Constitution, workers and employers may opt for alternative methods for the resolution of disputes; (ii) the Conciliation and Arbitration Tribunal only intervenes in the final instance; and (iii) this Tribunal offers a suitable and flexible manner of resolving labour disputes and protecting labour rights. The Committee also notes the observations of the National Federation of Chambers of Industries of Ecuador, which indicates that the repeal of article 326(12) of the Constitution respecting compulsory arbitration would make it necessary to undertake a comprehensive revision of the chapter on collective disputes of the Labour Code, including issues such as the representative nature of the organizations which may call a strike. In light of the above, the Committee encourages the Government to initiate discussions with the social partners on the possibility of amending article 326(12) of the Constitution and the related legal provisions, as indicated above. The Committee also trusts that the principles referred to above will be taken into consideration in the context of the discussion of the Bill to amend the legislation governing the public sector.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, observing on the one hand that section 498 of the Labour Code provides that only the enterprise committee or, in its absence, half plus one of the workers in the enterprise, may call a strike, and also noting the Government’s indication that no provision in the Labour Code restricts or prohibits the right to strike of federations and confederations, the Committee requested the Government to indicate the rules applicable to strikes called by federations or confederations. In this regard, the Committee takes due note of the Government’s indication that: (i) section 450 of the Labour Code provides that federations and confederations are governed by the precepts regulating trade unions; and (ii) national confederations and provincial federations of workers have called several general strikes in recent years, which demonstrates the legality of such action. The Committee requests the Government to provide information on these general strikes, including whether their initiation or conduct was subject to any dissuasive action by the State.

[The Government is asked to supply full particulars to the Conference at its 106th Session and to reply in full to the present comments in 2017.]