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

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2016, 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, all of which refer to issues examined in the present observation.

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.

The Committee once again requests the Government to provide its comments on the specific allegations of anti-union dismissals in an enterprise in the banana sector contained in the ITUC’s 2014 observations.

Follow-up to the discussion of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion in the Conference Committee on the Application of Standards (hereinafter the Conference Committee) in June 2016 on the application of the Convention by Ecuador. The Committee notes that in its conclusions the Conference Committee requested the Government to:

• -initiate a process of consultation with the most representative employers’ and workers’ organizations prior to any amendment to the law, in order to bring all the relevant legislation into compliance with the Convention;
• -amend the Basic Act on the Public Service (LOSEP) and the Basic Act on Public Enterprises (LOEP) so as to ensure that all workers, with the possible exception of persons engaged in the administration of the State, enjoy the right to establish trade unions and to bargain collectively in accordance with the Convention;
• -repeal Ministerial Orders Nos 00080 and 00155 which allow clauses in public sector collective agreements to be qualified as abusive, an authority which should come only within the purview of the judiciary;
• -accept a programme of technical assistance of the Office in conducting the consultations referred to above and the subsequent legislative reform; and
• -ensure that collective bargaining can be exercised in a climate of dialogue and mutual understanding.

Application of the Convention in the public sector

Articles 1, 2 and 6 of the Convention. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee urged the Government to take the necessary measures to ensure that the legislation applicable to the public sector contains provisions, at least for workers not covered by the exception set out in Article 6 of the Convention, which prohibit and establish dissuasive penalties for any acts of anti-union discrimination and interference, as set out in Articles 1 and 2 of the Convention. The Committee emphasized 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 dismiss 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. In this regard, the Committee notes, firstly, that the Government confines itself to indicating that the “compulsory purchase of redundancy” can only be applied during processes of restructuring or reorganization of public institutions, following examination by a Public Management Committee of the relevance and feasibility of the use of this procedure, but does not provide information on the measures taken to give effect to Articles 1 and 2 of the Convention in the public sector. The Committee also notes that the PSI and the UNE denounce in their observations a series of specific cases of anti-union dismissals, several of which were carried out through the “compulsory purchase of redundancy” procedure. The Committee also notes that the PSI and the UNE provide with their observations the text of the Bill to reform the legislation governing the public sector, which is currently under examination by the National Assembly. The Committee notes that this Bill contains a provision protecting public servants against acts of discrimination relating to the exercise of their right to organize and, in addition, a provision on the independence of organizations of public servants in relation to the public authorities. However, the Committee observes that the text of the Bill to which it has had access does not envisage specific penalties for cases of anti-union discrimination or interference. In the light of the above, the Committee once again urges the Government to take the necessary measures to ensure that the use of the “compulsory purchase of redundancy” procedure does not give rise to acts of anti-union discrimination and requests the Government to provide its comments on the specific cases of anti-union dismissal in the public sector denounced by PSI and the UNE. The Committee also trusts that the current reform of the legislation governing the public sector will give full effect, at least in relation to public sector workers who are not engaged in the administration of the State, to the guarantees set out in Articles 1 and 2 of the Convention. Recalling that the Government may have recourse to the technical assistance of the Office, the Committee requests the Government to report any progress in this respect.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee noted that various laws governing the public sector did not recognize the right to collective bargaining for public servants, and that only public sector workers governed by the Labour Code could engage in collective bargaining. Recalling that the Convention applies to public servants not engaged in the administration of the State, 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. Moreover, in its latest comment, the Committee noted that, with a view to unifying the legal regime governing workers in the public sector, the adoption of constitutional amendments was under discussion and intended to extend the scope of application of the above laws governing the public sector to all workers in the sector, with the sole exception of wage earners in the public sector recruited prior to the entry into force of the amendments. In so far as these laws governing the public sector did not recognize the right of public servants to engage in collective bargaining, the Committee, in the same way as the ILO technical mission which visited the country in January 2015, noted with concern that the adoption of the constitutional amendments would result in an extension of non-compliance with Article 4 of the Convention. In the same way as the Committee on Freedom of Association (Case No. 2970, 376th Report, October 2015), the Committee of Experts requested the Government to engage immediately in consultations with the workers’ organizations concerned with a view to ensuring that the draft constitutional amendments contribute to the application of Article 4 of the Convention and that the legislation governing the public sector is in conformity with that Article.

The Committee notes the Government’s indication that the constitutional amendments referred to above were adopted on 3 December 2015 and that, under the terms of these amendments: (i) new Article 326(16) of the Constitution provides that “whereas the State and the public administration have the obligation to ensure the general interest, there shall only be collective bargaining in the private sector”; and (ii) the first transitional provision of the amendments provides that “workers in the public sector who prior to the entry into force of the present constitutional amendments were governed by the Labour Code, shall maintain the individual and collective rights guaranteed by that legislation. Once the present constitutional amendment has entered in force, public servants who enter the public service shall be governed by the provisions that regulate it”.

The Committee also notes the Government’s indication that: (i) collective bargaining is a process that is only justified in order to distribute the profits generated from private activities; (ii) any surplus generated by public sector institutions shall be redistributed equally to society as a whole; (iii) the remuneration of public servants is on average substantially higher than that received in the private sector; and (iv) the protection of the rights acquired by workers in the public sector recruited prior to the entry into force of the amendments means that processes of collective bargaining initiated prior to 3 December 2015 have to be completed and that the collective contracts in force have to be fully respected. The Committee also notes the observations of the PSI, EI and UNE which indicate that: (i) completing a process initiated in 2008, the adoption of the constitutional amendments of December 2015 marks the complete disappearance of collective bargaining in the public sector in Ecuador; (ii) workers in the public sector, who are now a defunct category, recruited prior to the entry into force of the constitutional amendments are currently in a legal void; and (iii) in practice, despite the wording of the first transitional provision, the processes of collective bargaining covering workers in the public sector have been halted in their entirety.

The Committee observes with deep concern that, in violation of Articles 4 and 6 of the Convention, and despite its reiterated comments and those of other ILO supervisory bodies, the constitutional amendments adopted in December 2015 exclude the public sector as a whole from the scope of collective bargaining. The Committee recalls that, under the terms of these provisions of the Convention, all workers in the public sector who are not engaged in the administration of the State (such as employees in public enterprises, municipal employees and those in decentralized institutions, teachers in the public sector and personnel in the transport sector) must be able to benefit from the right to collective bargaining. The Committee also recalls that this right constitutes an important element of social democracy and that in many countries mechanisms are in operation which allow the harmonious coexistence of the public sector’s mission of general interest with the responsible exercise of collective bargaining. The Committee, therefore, urges the Government to reopen an in-depth debate with the trade unions concerned in the near future with a view to re-establishing collective bargaining for all categories of workers in the public sector covered by the Convention. Recalling its various comments made since 2008, the Committee also urges the Government to respect fully the right of workers in the public sector recruited prior to the entry into force of the constitutional amendments to continue negotiating their terms and conditions of employment and work. The Committee requests the Government to provide detailed information on this subject.

Application of the Convention in the private sector

Article 1. Adequate protection against acts of anti-union discrimination. 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. The Committee notes the Government’s indication that: (i) the current legislation does not contain specific provisions prohibiting anti-union discrimination in recruitment; and (ii) it agrees on the need to engage in reflection so as to be able to combat effectively any discrimination so that victims can be reintegrated into the labour market in accordance with their constitutional right to work. In light of the above, the Committee trusts that the Government will 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. The Committee requests the Government to provide information on any progress achieved in this regard.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee pointed out the need to amend section 221 of the Labour Code with respect to 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 that both the Government and the National Federation of Chambers of Industries of Ecuador indicate that this provision of the Labour Code guarantees the representativeness of the workers’ organization with which the collective agreement is concluded which, once signed, will apply to all workers whether or not they are unionized. The Committee recalls that, although the requirement of representativity for the conclusion of collective agreements is fully compatible with the Convention, the level of representativity established should not be such as to be an obstacle to the promotion and development of free and voluntary collective bargaining, as set out in Article 4 of the Convention. In this regard, while noting the Government’s indication that between 2010 and June 2016 a total of 267 collective agreements were concluded in the private sector, the Committee also emphasizes that, in its conclusions, the ILO technical mission which visited the country in January 2015, as a follow-up to the discussion in the Conference Committee in 2014, expressed concern at the low rate of coverage of collective bargaining, especially in the private sector. In light of the above, the Committee once again requests the Government, in consultation with the social partners, to take the necessary measures to amend section 221 of the Labour Code as indicated above. The Committee also requests the Government to continue providing information on the number of collective agreements concluded in recent years and the number of workers and sectors covered.

The Committee observes with concern that, despite its reiterated comments and the discussions held on the application of the Convention in the Conference Committee in 2014 and 2016, restrictions on freedom of association and collective bargaining which are contrary to the guarantees of the Convention are being extended in the public sector. The Committee urges the Government to take fully into consideration the content of the present observation, both with regard to the legislation in force and its application, and in relation to the draft legislation currently under discussion, and particularly the draft reform of administrative laws. In this regard, the Committee recalls that the Government may have recourse to the technical assistance of the Office.

[The Government is asked to reply in full to the present comments in 2017.]