Observation (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 notes the Government’s response to the observations of Public Services International in Ecuador (PSI-Ecuador) of August 2019.

The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020, as well as the Government’s reply thereon.

The Committee further notes the observations of PSI-Ecuador received on 25 September 2020, as well as the joint observations submitted by the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC) and the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020. The Committee notes that these observations apply in large part to the issues examined in the present comment.

Technical assistance

In its last comment, the Committee welcomed the Government’s request to the ILO for technical assistance regarding the process of legislative reform, with a view to addressing the observations and recommendations of the ILO supervisory bodies. For that reason, the Committee’s comment was restricted to a brief summary of the issues that remained to be resolved, having expressed trust that the technical assistance provided would enable the Government to take the necessary measures regarding those issues. The Committee takes note of the report of the technical assistance mission carried out in Ecuador from 16 to 20 December 2019. In that regard, it notes that the Mission: (i) presented a road map to the tripartite constituents, which aimed at reflecting the principal subjects discussed in the meetings and which foresaw that the parties would engage in tripartite dialogue, starting in March 2020, with the technical assistance of the ILO. The dialogue would seek to adopt concrete measures to address the comments of the ILO supervisory bodies, and (ii) encouraged the tripartite constituents to finalize the road map as fast as possible and invited them to continue the dialogue with a view to finding tangible and sustainable results. The Committee regrets to observe that the Government’s report makes no reference either to the technical assistance mission or to the road map. In that connection, it notes the allegations of PSI-Ecuador that the Government has failed to fulfil its commitment to the Mission to convene a further tripartite meeting in January 2020 to sign the road map.

The Committee recalls below the points it highlighted in its previous comments, which call for the implementation of concrete measures to bring the legislation into full conformity with the Convention.

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. Organizations of public servants other than the committees of public servants. The Committee observed that the Basic Reform Act, reforming the legislation governing the public sector (Basic Reform Act), adopted on 19 May 2017, established the concept of the “committee of public servants” with the purpose of guaranteeing certain prerogatives to the most representative organization of public servants in every public institution (comprising 50 per cent plus one of the staff). The Committee noted that even though section 11 of the Basic Reform Act does not prohibit the possibility of establishing several trade unions at the same public institution, it does envisage and regulate the exercise of various collective rights of public servants only by the committee of public servants, since there can only be one such body in a public institution in view of its obligation to comprise “50 per cent plus one” of the staff. Recalling that under Article 2 of the Convention, trade union pluralism must be possible in all cases, the Committee requested the Government to provide information on the manner in which organizations of public servants other than committees of public servants are able to represent and defend the interests of their members. In that connection, the Committee notes the Government’s indication that the Basic Reform Act recognises the right of public servants to organize for the defence of their rights, to improve the provision of public services, and to exercise the right to strike. The Committee observes however, that (i) the second transitional provision of the Basic Reform Act establishes that the Ministry of Labour issues the Ministerial Decisions required to implement the provisions of the Act; (ii) on 5 February 2018, the Ministry issued Ministerial Decision MDT-2018-0010 regulating the right to organize of public servants; (iii) section 21 of that Ministerial Decision provides that committees of public servants are responsible for defending the rights of public servants, for improving provision of public services and for the exercise of the right to strike; and (iv) section 24 of the Ministerial Decision indicates that a strike may only be declared by the committees of public servants of public institutions. The Committee once again recalls that under Article 2 of the Convention trade union pluralism must be possible in all cases. It also recalls that the most representativity should not result in the trade union that obtains such status being granted privileges which go beyond priority in representation for the purposes of collective bargaining, consultation by the authorities or the appointment of delegates to international bodies. The Committee therefore again requests the Government to indicate the means available to the organizations of public servants, other than the committees of public servants, within the framework of the Basic Reform Act and the Ministerial Decision, of defending the occupational interests of their members, of organizing their administration and activities, and of formulating their programmes, in conformity with the Convention.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. The Committee asked the Government to take the measures necessary so that the rules of Decree No. 193, which retains engagement in party-political activities as grounds for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. In that connection, the Committee notes the Government’s indication that, in compliance with section 226 of the Constitution, the institutions, agencies, departments and men and women public servants of the State, as well as those persons acting on behalf of a State authority, exercise only the powers and prerogatives conferred on them by the Constitution and the law. Recalling once more 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 of the Convention prohibits the administrative suspension or dissolution thereof, the Committee again requests the Government to take the necessary steps to ensure that the rules referred to in Decree No. 193 do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). In its previous comments, following up the conclusions of the International Labour Conference Committee on the Application of Standards of June 2017, the Committee expressed its deep concern at the administrative dissolution of the UNE and urged the Government to take all necessary steps as a matter of urgency to revoke that decision so that the UNE could immediately resume its activities. In its last comment, the Committee expressed that it was encouraged by the initiation of dialogue between the Government and the UNE as well as by the repeal of Decree No. 16, which constituted one of the legal bases for the dissolution of the UNE. The Committee noted that the repeal of this decree allowed for the revocation of the dissolution of several social organizations and expressed the expectation that the Government would soon be in a position to report the revocation of the dissolution of the UNE so that this organization could immediately resume its activities to defend the occupational interests of its members. The Committee notes that the Committee on Freedom of Association refers to this issue when examining Case No. 3279 and, on that occasion, trusted that the necessary measures would be taken to ensure that the UNE could register as a trade union with the Ministry of Labour, if the organization so requested. The Committee further urged the Government to take all necessary measures to ensure the full return of the property seized from the organization as well as the elimination of any other consequences resulting from the administrative dissolution of the UNE (see 391st Report, October 2019, Case No. 3279). The Committee notes the Government’s indication in its report that: (i) the dissolution and liquidation of UNE complied with due process; (ii) all legal actions filed by UNE against the administrative dissolution were overturned by the competent courts; and (iii) during the June 2019 to June 2020 period, five social organizations related to the UNE had been constituted, including the National Union of Education Workers – National Federation of Educational Personnel (UNTE-UNE), and registered in July 2020. While duly noting the registration of the UNTE-UNE, an organization of social nature related to the UNE, the Committee requests the Government to take the steps necessary to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the organization so requests. It also asks the Government to ensure the full return of the property seized from the organization as well as the elimination of any other consequences resulting from the administrative dissolution of the UNE, and to inform of all developments in that regard.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. The Committee asked the Government, in consultation with the social partners, to take the necessary steps to revise sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises. In that regard, the Committee notes the Government’s indication that the purpose of fixing a minimum number of workers and of limiting associations to the level of an enterprise for the establishment of a trade union is not intended to discourage or restrict the creation of that type of organization, but to seek to ensure the representativeness, cohesion and agreement of the trade union organization in its relations with the employers. The Committee further observes that the Committee on Freedom of Association dealt with this issue in its most recent examination of Case No. 3148 (see 391st Report, October 2019), and on that occasion, the Government reported that: (i) on 13 March 2018 a proposal was made to reform Ministerial Decision No. 0130 of 2013 (article 2(2) of which sets the minimum number of members to form a trade union at 30), replacing the number 30 with an indication that the minimum membership would be established by the Labour Code; and (ii) the National Labour and Wage Board, a tripartite body, would have the responsibility for defining the minimum number of members and the criteria for defining it. The Committee requests the Government to provide information in that regard and urges the Government, in consultation with the social partners, to take the necessary steps to amend sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and also to enable the establishment of primary-level unions comprising workers from several enterprises.

Article 3. Compulsory time limits for convening trade union elections. The Committee asked the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013, regulating labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their mandate, as set out in their respective union constitutions, so as to ensure that, subject to the observance of democratic rules, the consequences of any delay in holding elections shall be determined by the union constitutions themselves. The Committee notes the Government’s indication that several labour organizations and trade union federations took part in the approval of the Labour Organization Regulations, with the aim of solving the problem faced by workers’ organizations when the absence of leadership makes it impossible to convene new elections, and establishing an agile, simplified mechanism, based on the principles of participation, transparency and democracy. The Committee recalls that, under Article 3 of the Convention, trade union elections are an internal matter for the organizations and should be regulated primarily by their constitutions. The Committee therefore requests the Government to amend article 10 of the Labour Organization Regulations No. 0130 of 2013 to provide that, in compliance with any democratic rules, the consequences of any delay in convening trade union elections are set out in the constitutions of the organizations themselves.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that in its 2015 observation it noted with satisfaction that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible for trade union office. The Committee observes, nevertheless, that according to the comments of ASTAC and CEDOCUT section 49 of the Labour Justice Act has been declared unconstitutional under decision 002-18-SIN-CC of 21 March 2018. The Committee recalls that the national legislation must allow foreign workers to serve as trade union officials, at least after a reasonable period of residence in the host country. The Committee requests the Government to explain the consequences of the above decision of the Constitutional Court on the right of foreign workers to serve as trade union officials.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee notes that, in the public administration, the Basic Reform Act provides that only members of the committee of public servants may become enterprise committee officers. In that regard, the Committee again expects that the Government will take the necessary steps to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may stand for office only if the enterprise committee’s own statute envisages that possibility.

Article 3 of the Convention. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. Prison sentences for the stoppage or obstruction of public services. The Committee asked the Government to take the measures required to amend article 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for obstructing or stopping the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. In that regard, the Committee notes from the Government’s report that the request to amend the COIP is to come before the relevant State institutions, for consideration as to whether to proceed with the amendment. The Committee requests the Government to inform in this connection.

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 inform in that regard.

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

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