Observation (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)

The Committee notes the joint observations of the National Federation of Education Workers (UNE) and Public Services International (PSI), received on 1 September 2016, and the joint observations of the UNE and Education International (EI), received on 7 September 2016, with both trade union communications referring to matters examined in the present observation and the corresponding direct request. The Committee also notes that, in the context of their observations on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), received on 1 September 2016, the above organizations report police violence in the context of a peaceful demonstration accompanying the adoption on 3 December 2015 of amendments to the national Constitution, and the arbitrary detention of 21 persons, including the President of the Confederation of Workers of Ecuador, Edgar Sarango. The Committee expresses concern at these allegations and requests the Government to send its comments in this regard.

The Committee also notes the observations of the National Federation of Chambers of Industries of Ecuador, received on 2 September 2016, which also refer to matters examined in the present observation and in the corresponding direct request. The Committee finally notes the observations of the International Organisation of Employers (IOE), received on 1 September 2016, which are of a general nature.

The Committee notes the Government’s comments in reply to the joint observations of 2015 of the UNE, Public Services International (PSI) and the United Front of Workers (FUT). With reference to the complaint concerning the active role of 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 notes the Government’s indication that: (i) the State promotes the creation of all types of associations or organizations without favouritism or interference; (ii) it plays an active role in simplifying the procedures for the establishment and registration of labour organizations; and (iii) the Primary Teachers’ Network is not a labour or trade union organization, but an educational organization. With regard to the situation of Mery Zamora, former President of the UNE who, according to these trade unions, was subject to criminal persecution by the public authorities, the Committee notes the Government’s indication that Mery Zamora was found innocent by the judicial system.

Application of the Convention in the public sector

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 examined 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. Having taken due note of the Government’s indication that other provisions of the Constitution (article 326(7)) and of laws do recognize the right of workers in the public sector, without distinction whatsoever, to establish organizations of their own choosing, the Committee requested the Government to take 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. The Committee notes the Government’s indication in its latest report that the objective of article 326(9) of the Constitution is to prevent the disorganized proliferation of labour organizations. The Committee also notes that the PSI and the UNE provide with their observations the text of the Bill to amend the legislation governing the public sector, which is currently under examination by the National Assembly. The Committee notes that the Bill provides that, for the purposes of the exercise of their right to organize, in light of article 326(9) of the Constitution, public servants shall be represented by a “committee of public servants” (CPS), the members of which shall represent at least half plus one of all public servants in the same institution. The Committee observes that: (i) under the terms of the Bill, the CPS would have all the characteristics of a workers’ organization, with members, statutes and an executive board; (ii) the CPS would have all the attributes to promote and defend the collective interests of public servants recognized in the Bill (especially the right to social dialogue and the right to strike); (iii) the Bill does not envisage other forms of organization through which public servants could collectively defend their interests and exercise the collective rights referred to above; and (iv) in view of the need to include half plus one of all public servants, there could only be one CPS for each institution. The Committee recalls that, under the terms of Article 2 of the Convention, workers, whether in the public or private sector, must be able to establish the organizations of their own choosing. In light of the above, the monopoly of organization imposed by the law, whether directly or indirectly, is contrary to the provisions of the Convention, and trade union pluralism should be possible at all times. The Committee therefore urges the Government to take the necessary measures immediately to ensure that, in accordance with Article 2 of the Convention, both the Constitution and the legislation fully respect the right of public servants to establish the organizations of their own choosing for the collective defence of their interests. The Committee requests the Government to provide information on this subject.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations.

Regulations on the operation of the unified information system for social and citizens’ organizations (Executive Decree No. 16 of 20 June 2013, as amended by Decree No. 739 of 12 August 2015). In its previous direct request, the Committee observed that Executive Decree No. 16 envisaged broad grounds for administrative dissolution, 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). The Committee requested the Government to provide information on the applicability of these grounds for administrative dissolution to occupational organizations of public servants and to workers’ trade unions governed by the Labour Code. The Committee notes the Government’s indication that: (i) Executive Decree No. 16, as amended by Decree No. 739, only applies to social and citizens’ organizations self-defined as such, and is not therefore applicable to labour organizations; (ii) the labour legislation in Ecuador establishes a complex procedure for the dissolution of labour organizations, which may be requested by their members, but not at all by the State, or by employers in the private sector; and (iii) associations (of public servants) such as the UNE, which were not registered by the Ministry of Labour, but by the Ministry of Education, are not labour organizations governed by the Labour Code and are therefore covered by the provisions of Executive Decrees Nos 16 and 739.

In this regard, in light of Article 10 of the Convention, the Committee recalls that, in so far as occupational associations of public servants have the objective of furthering the economic and social interests of their members, irrespective of their classification or legal regulation under the terms of the national law, they are fully protected by the guarantees of the Convention. The Committee recalls in particular that the defence of the interests of their members requires associations of public servants to be able to express their views on the Government’s economic and social policy, and that Article 4 prohibits dissolution or suspension by administrative authority. In light of the above, the Committee urges the Government to adopt the necessary reforms so that occupational associations of public servants are not subject to grounds for dissolution which prevent them from exercising in full their mandate of defending the interests of their members, and are not subject to administrative dissolution or suspension. The Committee requests the Government to provide information on this subject.

Administrative dissolution of the UNE. In its previous comments, the Committee requested the Government to register the new executive committee of the UNE. In this regard, the Committee notes the observations of the UNE, EI and PSI alleging that: (i) in view of the continued refusal of the authorities to register the executive committee of the UNE, the teachers of the country took the initiative of convening an extraordinary congress on 14 May 2016 to start from zero the process of registering their executive committee; (ii) in July 2016, the Sub-secretariat for Education of the Metropolitan District of Quito, under the terms of Executive Decree No. 16, initiated the process of the administrative dissolution of the UNE; (iii) the Sub-secretariat for Education of the Metropolitan District of Quito declared the dissolution of the UNE in a resolution of 18 August 2016; and (iv) with a view to initiating the process of liquidating the assets of the UNE, the National Police of Ecuador raided and took over the trade union headquarters of the UNE in the cities of Guayaquil and Quito on 29 August 2016. The Committee also notes the Government’s indication that: (i) the UNE had been requested since 23 December 2013 to comply with a list of six requirements set out both in the regulations that are in force and in its own statutes; and (ii) the convocation of an extraordinary congress by a number of members of the social organization, who did not have the power to do so, to elect the members of its executive committee is in violation of the provisions of Executive Decree No. 16, as well as clause 18 of the statutes of the organization. Finally, the Committee notes that, in a joint communication of 27 September 2016, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the United Nations Special Rapporteur on the situation of human rights defenders condemned the use of the national legislation in Ecuador to dissolve the UNE. In light of the above, the Committee is bound to recall once again that the election of the officers of workers’ organizations, which include professional associations of public servants, is an internal matter in which the administrative authorities should not interfere and that the administrative dissolution of workers’ organizations constitutes a serious violation of the Convention. The Committee expresses its deep concern at the administrative dissolution of the UNE and urges the Government to take all necessary measures on an urgent basis to revoke that decision so that the UNE can immediately exercise its activities once again. The Committee requests the Government to report on any progress in this regard.

Article 3. Right of workers’ organizations and of associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. In its previous comments, the Committee urged the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code so as not to impose penal sanctions on workers engaged in a peaceful strike. In this regard, the Committee notes the Government’s indication that: (i) the prohibition set out in this section refers to the illegal and unlawful interruption of a public service outside the procedures governing the exercise of the right to strike; (ii) the objective of the penal provision is to safeguard the right of citizens to have access to public services without any limitation; and (iii) there is a process to be followed to call a strike in the public sector, and the labour legislation determines a system of minimum services to be provided. Recalling that no penal sanctions should be imposed for the peaceful participation in a strike and that such sanctions should only be permissible where violence is committed against persons or property, or other serious violations of penal law, 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.

Application of the Convention in the private sector

Article 2. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee recalls that, since the legislative reform of 1985, which increased the minimum number of members required from 15 to 30, it has been requesting the Government to reduce the minimum number of workers required by law to establish workers’ associations or enterprise committees. The Committee notes the Government’s indication that the minimum number of 30 members is intended to ensure the representative nature of the enterprise committee and to allow the conclusion of collective contracts which strengthen the union and its members. In this regard, the Committee emphasizes that the requirement of a reasonable level of representativity to conclude collective agreements, which is not contrary to the ILO Conventions on freedom of association and collective bargaining, must not be confused with the conditions required for the establishment of trade union organizations. Emphasizing that, under the terms of Article 2 of the Convention, workers shall have the right to establish organizations of their own choosing in full freedom, the Committee recalls that it 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. The Committee therefore once again requests the Government, in consultation with the social partners, to take the necessary measures to amend sections 443, 452 and 459 of the Labour Code to reduce the minimum number of members required to establish workers’ associations and enterprise committees.

Article 3. Compulsory time limits for the convening of trade union elections. In its previous comments, the Committee noted the allegation by various trade unions 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 competencies if they do not convene elections within 90 days of the expiration of their mandate, as set out in the statutes of their organizations. The Committee requested the Government to provide its comments on this subject, as well as information on the application of this provision in practice. The Committee notes the Government’s indication that the purpose of this provision is to promote the normal democratic functioning of trade unions. While observing that the promotion through the legislation of the democratic functioning of trade unions is not in itself contrary to the Convention, the Committee recalls that, by virtue of Article 3 of the Convention, trade union elections are an internal matter for the organizations which should primarily be governed by their statutes. The Committee therefore requests the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013 to ensure that, in compliance with democratic rules, the consequences of any delay in convening trade union elections are set out in the by-laws of the organizations themselves.

Election as officers of enterprise committees of workers who are not trade union members. In its previous comment, the Committee noted that new section 459(3) of the Labour Code 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”. The Committee considered that 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 Article 3 of the Convention, and it requested the Government to take the necessary measures to amend this provision of the Labour Code. In this regard, the Committee notes the Government’s indication that enterprise committees represent all workers, whether or not they are members of a union. Observing that, under the terms of the Labour Code, the enterprise committee is one of the forms which may be assumed by trade union organizations within the enterprise, and that the officers of the enterprise committee are elected solely by workers in the enterprise who are unionized, the Committee once again emphasizes that it would be acceptable for workers who are not union members to stand for office only if the specific by-laws of the enterprise committee envisage this possibility. The Committee therefore once again 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 achieved in this regard.

The Committee observes with deep concern that, despite its reiterated comments, restrictions on freedom of association that are contrary to the guarantees of the Convention are being extended, especially in the public service. The Committee urges the Government to take fully into consideration the content of the present observation both with regard to the legislation that is in force and its application, and in relation to the draft legislation that is currently under examination, and particularly the Bill to reform the administrative legislation. In this regard, the Committee recalls that the Government may have recourse to ILO technical assistance.

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

[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.]