Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 30 August 2022, which refer to issues that the Committee will examine in this comment. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, which refer to issues examined in this comment and allege the murder on 24 January 2022 of Mr Sandro Arteaga Quiroz, secretary of the Union of Workers of the Manabi Provincial Government, who had allegedly received death threats hours before his murder. The ITUC also alleges clashes between police and protesters in the context of a nationwide strike in October 2021 that culminated in the arrest of 37 protesters. The Committee recalls that the authorities should not resort to arrest and detention measures in cases of organization or participation in a peaceful strike. The Committee deplores the murder of Mr Arteaga Quiroz. Recalling that freedom of association can only be exercised in conditions in which fundamental human rights, in particular those relating to life and personal safety, are fully respected and guaranteed, the Committee strongly urges the Government to take without delay all necessary measures to determine responsibility and punish those guilty of this crime.

The Committee also notes the joint observations of the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, received on 1 September 2022, which in addition to dealing in detail with issues that the Committee addresses in this comment, allege unjustified delays in the registration of union organizations and new union officers, as well as the refusal to register union organizations for reasons not provided for in the Constitution or in the law. They also point out that the Government is seeking to table in the National Assembly a Bill on a Basic Employment Act, still in draft form, which contravenes the Committee’s comments. The Committee requests the Government to send its comments on all the above-mentioned observations. It also requests the Government to send a copy of the Bill and to keep it informed of any further developments.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes that in the discussion that took place in the Conference Committee on the Application of Standards (hereinafter referred to as the Conference Committee) in June 2022 on the implementation of the Convention by Ecuador, the Conference Committee noted with regret that no action had been taken to follow up on the technical assistance provided by the Office in December 2019 and also noted the long-standing issues regarding compliance with the Convention. The Conference Committee urged the Government to take action to foster an environment conducive to the full enjoyment of the right of workers and employers to freedom of association. The Conference Committee noted that both the Government and the social partners raised the importance of labour law reform and expressed the hope that the Government would seize this opportunity to bring its legislation and practice fully into line with the Convention in consultation with the social partners. The Conference Committee urged the Government to take effective and time-bound measures, in consultation with the social partners, to:

• -ensure full respect for the right of workers, including public servants, to establish organizations of their own choosing, for the collective defence of their interests, including protection against administrative dissolution or suspension;
• -amend legislation to ensure that the consequences of any delays in convening trade union elections are set out in the by-laws of the organizations themselves;
• -resolve the registration of the National Federation of Education Workers (UNE);
• -give effect to the road map presented in December 2019 by the ILO technical assistance mission; and
• -initiate a process of consultation with the social partners to reform the current legislative framework in order to enhance coherence and bring all the relevant legislation into compliance with the Convention.

The Conference Committee invited the Government to avail itself of technical assistance from the Office and requested that the Government accept a direct contacts mission and submit a report to the Committee of Experts by 1 September 2022 communicating information on the application of the Convention in law and practice, in consultation with the social partners.

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. Possibility of creating trade union organizations by branch of activity. For several years the Committee has been drawing the Government’s attention to the need 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 enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes that in its report the Government does not refer to the revision of the articles relating to the number of workers required to form workers' associations and enterprise committees. The Committee notes that CEOSL, FETRAPEC, the UNE and PSI stress that the number of no less than 30 workers for the establishment of trade union organizations is disproportionate and unreasonable in view of the Ecuadorian business structure, stating that persons working in 88.1 per cent of the business sector are not able to form trade union organizations. With regard to the creation of organizations that bring together workers from several enterprises, in its previous comment, the Committee had welcomed the 2021 ruling by the Provincial Court of Justice of Pinchincha ordering the Ministry of Labour to register ASTAC as a branch union, despite the fact that it was made up of workers from several enterprises and also ordering the Ministry to regulate the registration of unions by branch of activity. The Committee notes that the Government, ASTAC and the ITUC report that although ASTAC was granted legal personality on 11 January 2022, in compliance with the ruling, the Ministry and the State Attorney General’s Office filed an extraordinary protection order against the ruling for lack of adequate grounds and legal certainty and non-compliance with due process. The Committee notes that the extraordinary protection order, which has the support of business associations, is pending a decision by the Constitutional Court. It also notes that ASTAC states that the Government has not fully complied with the ruling since, although it has applied it with respect to ASTAC, it has refused to regulate the establishment of branch unions, stating that the ruling is not applicable erga omnes or inter communis (applicable to other parties). The Commission notes with interest the registration of ASTAC as a branch union. Recalling that, under the terms of Articles 2 and 3 of the Convention, workers must be able, if they so wish, to establish primary-level organizations at a level higher than the enterprise, the Committee firmly hopes that the above-mentioned ruling will contribute to enabling the creation of trade union organizations by branch of activity, and also hopes that the Committee’s assessment of this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. The Committee urges the Government to take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and to keep it informed of developments in this respect. The Committee also requests the Government to report on the proceedings before the Constitutional Court regarding the extraordinary protection order.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of the Regulations on Labour Organizations No. 0130 of 2013, 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 term of office, as set out in their respective union constitutions, to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes that the Government reports that a draft reform of the Regulations on Labour Organizations is currently being reviewed particularly with regard to section 10(c). Recalling that under Article 3 of the Convention, trade union elections are an internal matter for organizations, and observing that the consequences under the Regulations if the deadlines are not respected—the loss of powers and competencies for trade union committees—risk paralyzing the capacity for trade union action, the Committee firmly hopes that the draft reform will take into consideration its comments, and that the section in question will be modified along the lines indicated. The Committee requests the Government to report on any developments in this regard.

Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that, while in 2015 it had noted 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 to be an officer of an enterprise committee, in its most recent comment it observed that section 49 was declared unconstitutional by a ruling of 2018 because it violated the principle of trade union independence by providing that the legislation determined how the executive bodies of the enterprise committees were constituted and who had the right to vote in their elections. The Committee notes with regret that as a result of the declaration of unconstitutionality, section 459(4) has reverted to its original wording and requires Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The Committee notes the Government’s indication that Ecuadorian nationality is required to be an officer of an enterprise committee, but not to be a leader or member of other forms of association. The Committee notes that enterprise committees are one of the forms that trade unions can take within an enterprise. The Committee emphasizes that under Article 3 of the Convention all workers’ and employers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, if permitted under the organization’s constitution and rules, at least after a reasonable period of residence in the host country. The Committee therefore urges the Government to amend section 459(4) of the Labour Code and to keep it informed of any developments in this regard.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee had previously indicated to the Government the need to amend section 459(3) of the Labour Code, which provided that the role of officer of an enterprise committee may be filled by any worker, whether or not a union member, who stands for office. The Committee notes the Government’s indication that the above-mentioned Constitutional Court ruling of 2018 also had an impact on the wording of section 459(3), and that it reverted to its original wording which does not provide for the possibility for non-unionized workers to participate in enterprise committee elections. Taking due note of this information, the Committee requests the Government to hold consultations with the social partners in relation to the need to review section 459(3) of the Labour Code to bring it into full compliance with the principle of trade union autonomy.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public employees were 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. Recalling that under Articles 2 and 9 of the Convention, with the sole possible exception of 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 to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. The Committee notes that, with regard to public servants under fixed-term or occasional services contracts, the Government merely reiterates that the public institutions of the State are working to ensure that public servants have their respective definitive appointments, provided that their activities are not temporary. The Committee notes with regret that no progress has been made in taking its comments into account in relation to the need to bring the legislation into line with the Convention in such a way that all workers, with the sole possible exception of the members of the police and of the armed forces, have the right to establish and to join organizations of their own choosing. The Committee urges the Government to take the necessary measures to bring the legislation into line with 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, according to the provisions of the Basic Reform Act, the committees of public servants, which must comprise 50 per cent plus one of the staff of a public institution, are responsible for defending the rights of public servants and are the only bodies that can call a strike. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee requested the Government to provide information on organizations of public servants other than the committees of public servants and to indicate in detail what means they have for defending the occupational interest of their members. The Committee notes the Government’s indication that public servants, when forming their organizations, have the right to draft their statutes in which they may establish any means to defend their interests, emphasizing that public servants’ organizations are legal entities under private law, and therefore may establish any regulation that is not prohibited by law. The Committee notes that it is precisely the Basic Reform Act that indicates that the committees of public servants are responsible for defending the rights of public servants and are the only bodies that can call a strike. It is on this basis that the Committee requested the Government to provide information on organizations of public servants other than the committees of public servants and to indicate what means they have for defending the occupational interest of their members. The Committee regrets that it has not received this information and reiterates its request to the Government to provide information in this respect. Recalling that under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes, the Committee once against requests the Government to take the necessary steps to ensure that the legislation does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously drew the Government’s attention to the need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes that according to the Government, no progress has been made in this regard. The Committee regrets that no action has been taken in this respect and notes that, according to CEOSL, FETRAPEC, the UNE and PSI, the provision in question is being used to criminalize social protest. The Committee strongly urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures are taken, to ensure that this provision is not used to criminalize social protest.

Article 4. Dissolution of associations of public servants by the administrative authorities. The Committee previously asked the Government to take the necessary measures to ensure that Decree No. 193 of 2017, which retains engagement in party-political activities as grounds for dissolution and provides for administrative dissolution, does not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication that labour and social organizations are governed by civil law and that it falls to their members to exercise the rights and obligations recognized by their statutes. The Committee notes that, according to CEOSL, FETRAPEC, the UNE and PSI, the provision of Decree No. 193 that maintained as grounds for dissolution the development of party-political activities was declared unconstitutional by a judgment issued on 27 January 2022 in which the Constitutional Court held that it was not admissible that an open and indeterminate provision could limit the right of social organizations to participate in matters of public interest and to oversee the actions of the public authorities. The Committee notes that these organizations further state that: (i) Decree No. 193 regulates only social organizations and not trade union organizations; (ii) the Labour Code and the Basic Reform Act establish that public servants’ organizations can only be dissolved by judicial decision; and (iii) without prejudice to the foregoing, the Government applies the grounds for forced dissolution of social organizations to trade union organizations. Recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of the associations of public servants, the Committee urges the Government to ensure that the rules of Decree No. 193 are not applied to associations of public servants that have the purpose of defending the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). In its last comment, having noted the registration of social organizations related to the UNE, (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government to: (i) indicate whether the registration of the UNE-E with the Under-Secretariat of Education of Quito meant that the UNE had been able to resume its activities of defending the occupational interests of its members; (ii) take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee notes that, after summarizing the events that have taken place in recent years, the Government indicates that the UNE filed several legal actions against the dissolution resolution and that, to date, although all the actions filed by the UNE have been rejected, the Constitutional Court’s ruling on an extraordinary protection order is still pending, and that, with the Constitutional Court’s decision, the national judicial instances will have been exhausted. The Committee notes that, according to the CEOSL, FETRAPEC, the UNE and PSI, the Government has not complied with the Committee’s request in its previous comments. The Committee requests the Government to provide information on the ruling handed down by the Constitutional Court on the pending extraordinary protection order and to provide the information requested by the Committee in its previous comment.

Technical assistance. Both the Committee and the Conference Committee have noted with regret that the Government has not given follow-up to the technical assistance provided by the Office in December 2019 regarding measures to address the comments of the supervisory bodies. The Committee notes that the Government shows interest in receiving technical assistance to restart tripartite social dialogue and establish a new roadmap in that regard. The Committee expresses the firm hope that, with the technical assistance in which the Government has shown interest, social dialogue will be restarted and progress will be made in taking concrete, effective and time-bound measures, in consultation with the social partners, to bring the legislation into conformity with the Convention. Like the Conference Committee, this Committee hopes that the Government will accept a direct contacts mission and also hopes that the implementation of the measures referred to in this comment will contribute to guaranteeing greater respect for the rights enshrined in the Convention.

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