Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee recalls that its earlier comments focused on the following issues.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee observed that, although section 11 of the Basic Reform Act, reforming the legislation governing the public sector (hereinunder Basic Reform Act), adopted in 2017, recognizes the right of public servants to organize, certain categories of public servants are excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed term contracts. The Committee asked the Government to provide detailed information on the categories of public servants excluded from the right to organize and also on the grounds for such exclusion. The Committee notes the Government’s indication that the public institutions of the State are working towards providing public servants with permanent contracts, wherever the activity performed is not temporary. While noting the Government’s indication, the Committee recalls once again that under Articles 2 and 9 of the Convention, with the sole possible exception of the members of the police and of the armed forces, all workers, including permanent or temporary public servants and those under fixed term or occasional services contracts, have the right to establish and join organizations of their own choosing. The Committee requests the Government to take the measures required to bring the legislation into line with the provisions of the Convention mentioned above.

Article 3. Right to strike of public servants. The Committee observed that the Basic Reform Act of 2017 contained excessive restrictions on the right of organizations of public servants to organize their activities and formulate their programmes, as set out in Article 3 of the Convention. The Committee considered in particular that, as regards public servants who do not exercise authority in the name of the State: (i) the list of public services in which the right to strike is prohibited (health; environmental sanitation; education; justice system; fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; postal and telecommunication services) should be limited to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, with the possible establishment of minimum services for other public services of fundamental importance; (ii) the establishment of minimum services for public services of fundamental importance should be decided, if no agreement can be reached by the parties, by a joint or independent body which has the confidence of the parties, and not by the Ministry of Labour, without in any way calling into question the integrity of the latter or of its officials; and (iii) the referral of collective disputes to compulsory arbitration (which, according to the new Act, can be decided by the Ministry of Labour when the latter considers that the provision of the corresponding public service is endangered) should be limited to situations in which strike action may be prohibited for public servants who exercise authority in the name of the State, to essential services in the strict sense of the term or in an acute national crisis. In that regard, the Committee notes the Government’s indication that the measures regulating public servants’ right to strike seek to ensure that citizens’ access to public services is not adversely affected when public servants exercise their right to strike. Emphasizing once again that the necessary protection of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, the Committee again requests the Government, in the light of the considerations recalled above, to take the necessary steps to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes.

Determination of minimum services in the private sector in the event of disagreement between the parties. The Committee asked the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event of disagreement of the parties concerning the determination of minimum services in the private sector, 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 that the Government reiterates that the role of the labour inspectorate and of the conciliation and arbitration boards is to moderate the dialogue and negotiation between the parties, without any form of interference. While taking due note of the Government’s indications, the Committee observes that section 515 establishes that where there is no agreement, the modalities for the provision of minimum services shall be decided by the Ministry of Labour and Employment, and in this regard the Committee considers that in the event of disagreement between the parties on the determination of minimum services in the private sector, the government authorities should appoint an independent, joint body to determine them. The Committee therefore again requests the Government to take the necessary steps to amend section 515 of the Labour Code in that respect.

Compulsory arbitration in the private sector. Observing that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration boards, the Committee requested the Government to clarify to what extent the authority of the conciliation and arbitration boards restricted the right to strike of workers’ organizations in the private sector. In that regard, the Committee takes note of the Government’s indication that the boards are composed of workers’ and employers’ representatives, and that therefore they participate in the board’s decisions. While taking due note of the Government’s indications, the Committee considers that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national or local crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. Accordingly, the Committee again asks the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations indicated above.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, the Committee asked the Government to indicate whether the legislation recognized the right to strike of federations and confederations and to provide information on general strikes convened by them and on any dissuasive action by the State. In that connection the Committee notes that, on the one hand, the Government indicates that: (i) there is no legal limitation of the right to strike of federations and confederations; (ii) in recent years, federations and confederations have on several occasions convened general strikes, and (iii) those strikes were not considered illegal wherever they did not provoke a stoppage of the public services. On the other hand, the Committee notes the Government’s indication that collective agreements are signed with primary-level organizations and that the federations and confederations play a decisive role, providing advice and support to primary-level organizations in declaring strikes. The Committee requests the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations and to provide information on the general strikes convened by them and on the action that has been or may be taken by the public authorities in respect of such strikes.

The Committee notes with regret that, having made available the technical assistance requested, there has been no discernible progress to the present date in respect of measures necessary to bring the legislation into conformity with the Convention. The Committee most particularly regrets that it has received no information from the Government relating to the follow-up given to the Office’s December 2019 mission. The Committee urges the Government to intensify its efforts to adopt the necessary measures regarding the points raised in the Committee’s comments. In that regard, noting the Government’s indication that the Ministry of Labour envisaged holding round-table dialogues with certain employers’ and workers’ organizations at the end of 2020, the Committee urges the Government to facilitate constructive dialogue with all representative employers’ and workers’ organizations with a view to obtaining tangible and sustainable results. The Committee requests the Government to keep it informed in that regard.

[The Government is asked to reply in full to the present comments in 2021.]