Report in which the committee requests to be kept informed of development - Report No 243, March 1986

Case No 1348 (Ecuador) - Complaint date: 14-SEP-85 - Closed

1. 280. The Latin American Central of Workers (CLAT), on behalf of its affiliate, the National Union of Workers and Employees in the Equatorian Institute of Telecommunications (IETEL), presented a complaint of violations of trade union rights in a communication dated 14 September 1985. The Government supplied its observations in a communication dated 11 December 1985.
2. 281. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87) and the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. The complainant's allegations

1. 282. To its communication of 14 September 1985, CLAT attaches various documents describing the situation of its affiliate in IETEL. First, there is a request, dated 12 April 1985, from the 1st Administrative Court ordering the Minister of Labour to supply the files concerning the refusal to register this newly formed union. Secondly, there is a copy of the documentation lodged with that court, explaining that, on 21 December 1984, the newly formed union presented the Ministry with all the registration documents required under s. 429 of the Labour Code. Registration was refused on 26 December and on two other occasions because associations of IETEL workers had been previously approved by the Ministry under the Civil Code, not the Labour Code and because the undertaking concerned - being a state body - was governed by public administration legislation.
2. 283. The complainant points out that, under s. 441 of the Labour Code, a refusal to register and the consequent denial of legal personality can only be based on situations where the constitution of the union contains provisions contrary to the Constitution or laws. According to the complainant, this was not the case with the by-laws of IETEL's union.

B. The Government's reply

1. 284. In its letter of 11 December 1985, the Government explains that when the Ministry received the union's application for registration on 21 December 1984, it carried out the usual administrative examination of the by-laws and decided that the association was not occupational in character and consequently could not be accepted as a workers' organisation. The responsible official so informed the applicant union and returned all its documentation since the applicants were not "workers" under the national labour law.
2. 285. Further studies of the documentation were made when the applicant union, as it is entitled to under the law, presented two further requests for registration on 4 January and 7 February 1985. The Ministry's position, however, did not change since there had been no change in the circumstances or legal reasoning. The Government points out that appeal procedures exist against a negative administrative decision, the appropriate body in this case being the Administrative Court. The matter is sub judice before this court and the Government undertakes to send a copy of the judgement as soon as it is handed down.
3. 286. The Government attaches to its reply copies of the Ministry's letters of refusal from which it appears that, under the Telecommunications Act, workers and employees at IETEL are deemed to be public servants coming within the jurisdiction of the relevant public service Act. Only manual workers involved in the construction and maintenance of lines are covered by the Labour Code. The Act on the Civil Service and Administrative Careers - which is the relevant legislation - prohibits public employees from forming trade unions. The Supreme Court had already in 1982 decided that, since IETEL was a body carrying out a public service, its employees were covered by the Act on the Civil Service and Administrative Careers.

C. The Committee's conclusions

1. 287. The Committee notes that this case concerns the refusal by the Ministry of Labour to register a national union covering workers and employees of the Equatorian Institute of Telecommunications. This refusal was based on the fact that the organisation's members are employed by a body set up by law to carry out a public service and which comes under the Act on the Civil Service and Administrative Careers in its relations with employees. Moreover, under section 22 of the Telecommunications Act, the employees of IETEL are deemed to be public servants, except those manual workers who are covered by the Labour Code.
2. 288. However, section 60 of the Act on the Civil Service and Administrative Careers prohibits public servants from setting up trade unions. They can only form associations (section 9 of that Act) which may further and defend the interests of their members, but which do not have the right to strike or the right to bargain collectively. This prohibition on creating trade unions, applicable to all public servants, has been commented on by the Committee of Experts on the Application of Conventions and Recommendations.
3. 289. In the present case, the refusal to register the National Union of Workers and Employees in IETEL therefore makes it impossible for these workers to negotiate collectively their conditions of work. The Committee must therefore examine whether these workers are guaranteed the principle set out in Article 4 of Convention No. 98, namely that measures appropriate to national conditions shall be taken to encourage and promote the full development and utilisation of machinery for voluntary negotiation of collective agreements. Article 6 of the Convention allows the exclusion of "public servants". However, the Committee of Experts has considered that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons who are employed by the State or in the public sector, but who do not act as agents of the public authority is contrary to the meaning of the Convention; the Committee also has considered that this is made even clearer in the English text of Article 6 of the Convention, which permits the exclusion solely of public servants "engaged in the administration of the State". The Committee could not admit the exclusion from the terms of the Convention of important categories of workers employed by the State merely on the grounds that they are formally assimilated to certain categories of public officials engaged in the administration of the State. If this were the case, the Convention might be deprived of much of its scope. The distinction therefore must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State - that is, civil servants employed in government ministries and other comparable bodies, as well as officials acting as supporting elements in these activities - and, on the other hand, other persons employed by the government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of the Convention. (See, in this regard, Freedom of Association and Collective Bargaining, Report III, Part 4B, ILC, 69th Session, Geneva, 1983, para. 255.)
4. 290. Given the criteria thus established by the Committee of Experts, the Committee considers that the staff in IETEL should not be excluded because of their functions from the right to bargain collectively. The Committee is also of the opinion that they should therefore enjoy the right to set up trade unions which can promote and defend their members' interests, in particular through collective bargaining.
5. 291. The Committee observes that the IETEL union has appealed to the administrative courts against the Ministry of Labour's refusal to register it. The Committee hopes that the decision of the Administrative Court will take into account the international standards that have been ratified by Ecuador. It requests the Government to keep it informed of the Administrative Court's decision on the matter.

The Committee's recommendations

1. 292. In these circumstances, the Committee recommends the Government Body to approve this report and, in particular, the following conclusions:
   • a) The Committee notes that the refusal to register the National Union of Workers and Employees in IETEL makes it impossible for these workers to negotiate collectively their conditions of work.
   • b) On the basis of Articles 4 and 6 of Convention No. 98, the Committee considers that the IETEL staff should not be excluded from the right to bargain collectively and should therefore enjoy the right to set up trade unions which can promote and defend their members' interests, in particular through collective bargaining.
   • c) The Committee hopes that, when deciding the appeal brought by the union, the Administrative Court will take into account the international standards ratified by Ecuador. It requests the Government to keep it informed of the outcome of the appeal.