Report in which the committee requests to be kept informed of development - Report No 248, March 1987

Case No 1381 (Ecuador) - Complaint date: 22-SEP-86 - Closed

1. 381. In a communication dated 22 September 1986, the ICFTU submitted a complaint of infringement of trade union rights in Ecuador. The complainant organisation provided additional information in support of its complaint in a communication of 18 November 1986.
2. 382. The Government sent its observations in communications dated 2 and 17 October 1986 and 8 January 1987.
3. 383. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87) and the Right to Organise in Collective Bargaining Convention, 1949 (No.98).

A. The complainant's allegations

1. 384. In its complaint, the ICFTU explains that its affiliate organisation in Ecuador, the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL), organised, together with other national trade union confederations, a peaceful 24 hour strike on 17 September 1986 with a view to doubling the basic subsistence wage and condemning the Government's economic and social policy. Fifteen trade unionists were arrested on that day, including Julio Chang Crespo, Secretary-General of the CEOSL and member of the Executive Committee of the Inter-American Regional Organisation of Workers (ORIT), a regional organisation belonging to the ICFTU. The ICFTU states that it supports its affiliate organisation's claims for wage increases and the repeal of governmental economic and social measures.
2. 385. Together with its communication of 18 November 1986, the ICFTU encloses a report from its affiliate, the CEOSL, on the causes which gave rise to the national general strike called by the Ecuadorian trade union movement and the course it took. The CEOSL explains in this document that the Government has carried out a policy aimed at giving a boost to exporters of agricultural products, banks and large undertakings at the expense of small and medium-sized enterprises, resulting in the worsening of the social and economic situation of the majority of the population. This policy has brought about, for instance, price increases in stable commodities, public services (transport, electricity, water and telephones) and medicines, the freezing of budgetary expenditure for education and an increase in unemployment and underemployment.
3. 386. According to the CEOSL, the Government systematically infringes Conventions Nos. 87 and 98 and the right to strike. For example, it refuses to register trade union executives which have been democratically and legally elected and to approve the rules of new organisations by laying down administrative requirements not stipulated by law. The CEOSL quotes the case of several trade unions who have been confronted with such difficulties (the Ecuadorian Railway Workers Union, the Works' Council of Cubiertas and Mzov S.A., the Federation of Free Workers in the Ecuadorian Sugar Sector, the Santa Elena Agricultural Workers' Trade Union).
4. 387. As regards collective bargaining, the CEOSL states that collective agreements are not applied either in the public or in the private sector; bargaining is obstructed and agreements negotiated with public undertakings or bodies are challenged by the Ministry of Finance. In many cases, according to the CEOSL, strikers are subjected to police repression although the strikes have been called in strict conformity with the law.
5. 388. The CEOSL also points out that the Executive does not apply the decisions adopted by the National Congress. For instance, the Government submitted a Bill to increase wages by 2,000 sucres per month (equivalent to 13 US dollars ) accompanied by a tax programme to finance the wage increase. The Congress refused this Bill on the grounds that the increase was derisory. The Executive nevertheless, implemented this Bill, refusing to apply the Congress's decision to increase wages by 6,000 sucres per month (equivalent to 41.37 US dollars).
6. 389. According to the CEOSL, the President of the Republic also approved an Executive Decree restricting the right to call solidarity strikes, which is contrary to Ecuadorian law. This Decree, of which the CEOSL provides a copy, limits solidarity strikes to five days, stipulating that they may not be called upon more than twice in one year by workers in the same undertaking. The CEOSL has lodged an appeal against this Decree with the Tribunal of Constitutional Guarantees.
7. 390. In these circumstances, the national trade union confederations called a national strike on 17 September 1986, in which wide sectors of the economy throughout the country took part. This movement was harshly put down by the police which, according to the CEOSL, arrested about 100 workers.
8. 391. The CEOSL headquarters were also brutally attacked by the police and the trade unionists inside were dealt blows.

B. The Government's reply

1. 392. In its communications of 2 and 17 October 1986, the Government states that Julio Chang Crespo, mentioned in the ICFTU's complaint, was arrested on 17 September 1986 and sentenced to two-days' imprisonment for breach of the peace and not for having exercised the right to strike, which is legally recognised. The person in question was released on 19 September and, two days later, left the country to attend a trade union meeting being held in Buenos Aires.
2. 393. The Government adds that strikes linked to industrial disputes are protected by the Ecuadorian legal system but that, on the other hand, collective work stoppages and political strikes are specifically banned by Act No. 105 adopted by the National Assembly in 1967. Under this Act, a collective work stoppage is defined as being the collective cessation of activity, the imposing of a lock-out outside the cases allowed by law, the paralysis of lines of communication and other similar anti-social occurrences. The instigators and authors of such stoppages are liable to a fine of 1,000 to 10,000 sucres and to two- to five-years' imprisonment; those taking part in the work stoppage are liable to a fine of 200 to 1,000 sucres and to three-months' to one-year's imprisonment. In its communications issued before the strike, the Government informed the population that this Act was still fully in force.
3. 394. In the text of the sentence handed down by the Sixth Police Court on the persons arrested on 17 September 1986, it is stated that those concerned took part in demonstrations not authorised by the police, which disrupted law and order and blocked the public highway, and that they shouted protests against the Government and public officials. In accordance with section 606, paragraph 9 of the Penal Code, they were sentenced to two days' imprisonment.
4. 395. The Government also encloses press cuttings containing statements by the Minister of Labour to the effect that the strike of 17 September was of a political nature and attempted to destabilise the regime.
5. 396. In its communication of 8 January 1987, the Government considers that the critisisms levelled by the complainants at the economic and social policy conducted in Ecuador are merely subjective statements of an arbitrary nature and divorced from reality. Admittedly, like many developing countries, Ecuador is undergoing a crisis, but the Government is attempting to ensure that the nation overcomes it unscathed and with the least social and political consequences. It is incumbent upon the public authorities to guarantee peace in the country and uphold national law and order.
6. 397. The Government strongly denies the allegation that, by controlling the seditious actions of 17 September, it infringed ILO Conventions Nos. 87 and 98. It widely respects trade union rights and guarantees the exercise of these rights provided that this is lawful and moral and does not infringe legislation or disrupt law and order. The "general strike" of 17 September, wrongly described as "peaceful", was neither of a social nor trade union nature but was a seditious act: groups of rioters set up barricades in the streets and on the highways, caused fires, attacked members of the police force and private and official vehicles, damaged private property and injured individuals. The Government was prudent in the way it controlled the situation. Only several people actually instigating the disturbances or involved in violent action were arrested after being caught in the act. These agitators, who were imprisoned, were immediately released once the disturbances had ended and after serving a very short sentence of two-days' imprisonment, in accordance with the penalties for offences laid down in the Penal Code. The only reason behind all the international proceedings was therefore to prolong a meticulously organised scandal and to exaggerate the importance of incidents brought rapidly brought under control. According to the Government, even an opposition paper described the general strike as being political. Furthermore, the Government points out that the so-called "evidence" of the "repression" carried out by the Government consists of cuttings from this same opposition paper.
7. 398. The Government quotes several articles from the National Constitution: article 78, which lays down the functions and duties of the President of the Republic, including the upholding of national law and order, the use of the police force when security and public services warrant this and the declaration of the national state of emergency; article 128, which states that the role of the police force is to uphold national sovereignty, defend the integrity and independence of the nation and to guarantee its judicial system. The Government also provides a copy of the provisions of the Penal Code pertaining to offences against national state security. The Government points out that the rights of the individual and of society are protected by Ecuadorian legislation, in particular by Title II of the Constitution, of which it provides a copy.
8. 399. The Government adds that the State's raison d'être is closely bound up with the problem of sovereignty, considered as the right of the State to determine its own national affairs and to be a part of the international community without being subject to other States. It believes that sovereignty is absolute, indivisible, inalienable and imprescriptable. The State might accept to share the responsibilities of international co-operation, but never interference in matters which fall within the province of its self-determination.
9. 400. The fulfilment of any ultimate goal of the State, the Government adds, presupposes the existence of a coercive power limited by standards. Amongst those ultimate goals necessary to the State is the legal goal. Referring to various authors, the Goverment declares that the State cannot give up its role of guarantor and enforcer of national law and order and the national judicial system, without relinquishing its very existence. If the State's judicial raison d'être ceased to exist, so would its social objectives and the "upholding of man's natural and imprescriptable rights". A responsible government cannot therefore fail in its duty to guarantee the supremacy of law by making prudent use of coercive measures, which this very law empowers it to do.
10. 401. In the Government's opinion, the opposition spokesmen, by using the term "repression", want to give the impression of a tyrannical government, which is the opposite of the truth.
11. 402. As to the specific allegations made in the present case, the Government points out that those guilty of the offences committed on 17 September 1986 received the mildest sentence possible, corresponding to a minor infraction. It points out that offences which resulted in the pulverisation of a considerable number of policemen's helmets, in the smashing of dozens of windscreens, in the hospitalisation of countless policemen and police officers, in the destruction of police property and cars might have been penalised quite differently: six-months' to three-years' imprisonment (section 131 of the Penal Code: for conspiracy to overthrow the Government, or section 132, for incitement to break the law); one- to five-years' imprisonment (section 135: for the disruption of peace amongst citizens by providing arms or encouraging them to arm themselves against each other); six-months' to two-years' imprisonment and a fine of 500 to 1,000 sucres (section 148: for the distribution by any means or disseminating abroad of propaganda or false news or information which aims at disrupting law and order or casts a doubt upon national honour); three-months' to two-years' imprisonment and a fine of 200 to 1,000 sucres (section 151: for the introduction into the country of any money or securities to be used for subversive purposes or to disrupt law and order); one- to three-months' imprisonment and a fine of 100 to 300 sucres (section 153: for the promotion, organisation or leadership of public marches or demonstrations in the street, squares or other public places without written authorisation from the competent authority); eight- to 12-years' imprisonment (section 158: for actions resulting in the destruction, damaging, disuse, interruption or paralysis of public services or industrial plants with a view to alarming the population; 12 to 16-years' imprisonment (section 158, paragraph 2: for injury caused to individuals as a result of the above-mentioned actions). The Government therefore preferred not to order the opening of a trial involving severe penalties and to have the acts of vandalism committed on 17 September 1986 judged as minor infractions.
12. 403. The Government goes on to comment on the allegation that it creates obstacles for the approval of the rules of new organisations. As regards the Ecuadorian Railway Workers' Union, the Government explains that this case involved a review of the rules which contravened the law, in accordance with section 442 of the Labour Code. The trade union, after being notified of the refusal on 10 July 1986, submitted a new draft which was accepted by the Minister of Labour and Human Resources on 31 July 1986. On the same day, the amended rules were registered with the Department of Occupational Organisations and Statistics under the General Labour Directorate. This proves that the legitimate demands of trade union organisations are given preferential treatment since the registration formalities were carried out in one day, whereas the Labour Code provides for a time period of 30 days.
13. 404. The Works' Council of the enterprise Cubiertas and Mzov SA submitted draft rules, a provisional list of officers and a copy of the constituent resolution which was not authenticated by the secretary of the organisation. On 15 July 1986, the authorities turned down the request, pointing out the irregularity which made it unacceptable. Until now, those concerned have not taken any further steps.
14. 405. The Federation of Free Workers in the Ecuadorian sugar sector decided to amend its rules. However, in the amendments, there were errors of content and form. The authorities returned the draft so that these irregularities could be corrected. For instance, the head of the administrative services of the Ministry of Labour requested that the organisation should: make a distinction between associations of retired workers and workers' associations; determine which body would be competent for amending the rules (Congress or the Executive); not take upon itself duties corresponding to those of state bodies; not infringe section 443 of the Labour Code (which forbids trade unions or occupational associations to intervene in party or religious politics) and thus clarify references to "ideology" contained in the rules; comply with the provisions contained in section 443 of the Labour Code pertaining to the fixing of subscriptions; stipulate that the objectives stated must be lawful. Until now, those concerned have not made further requests concerning the registration of the new rules and it is unknown whether they have attempted to make their draft rules comply with logic and the law.
15. 406. The draft rules submitted by the Santa Elena Agricultural Workers' Trade Union contained irregularities which were pointed out to it. Amongst other things, it intended imposing union dues on workers not belonging to the union, which is illegal. Furthermore, the provision contained in section 439 of the Labour Code on the minimum number of workers required to set up an association was not fulfilled. The draft was returned to those concerned and a reference made to the points which needed to be corrected. Until now, they have not replied to this request. The Government also provides statistics on the organisations registered from 1980 to 1985.
16. 407. As regards Decree No. 2205 of ll September 1986 setting regulations under section 498 of the Labour Code, the Government explains that increasing use had been made of solidarity strikes to disrupt the peace of the country for primarily political purposes, which have nothing to do with trade union activities. As a result, national production has suffered considerable damage and the stability of existing work sources is seriously threatened. According to the Government, excessive recourse to these actions might further increase unemployment within the country.
17. 408. The Government points out that the Decree has not affected in any way the right to strike of workers directly involved in labour disputes. The regulations only apply to those giving support to lawful disputes outside their own undertaking, by downing tools in enterprises not involved in the dispute.
18. 409. Furthermore, the Decree acknowledges the right to carry out a solidarity strike. It only makes this right subject to a list of rational conditions and regulations, identical to those in force for the principal strike. A solidarity strike must be declared lawful or unlawful by the authorities. If the strike is declared unlawful, the employer is entitled to dismiss the strikers. A strike is deemed unlawful if the strikers commit acts of violence. It may only be declared by the works' council or by 50 per cent, plus one, of the persons employed in the undertaking or factory. Police must take security measures and prevent agitators and strike-breakers from entering the workplace. However, strikers may remain at the workplace. Work may not be resumed by the employment of substitute workers. The labour authorities who are aware of the principal dispute must be informed of the calling of a solidarity strike. The employer is entitled to intervene as a party in matters bound up with or resulting from the solidarity strike. Workers under the same employer may not declare a solidarity strike more than twice a year, and each action must last no longer than five consecutive days. The right to call a solidarity strike is recognised whenever its object is to support lawful strikes declared within the same province or branch of activity.
19. 410. Finally, the Government points out that the workers have lodged an appeal against this Decree with the Tribunal of Constitutional Guarantees and the matter is at present pending.

C. The Committee's conclusions

1. 411. The allegations submitted by the complainant stem mostly from the 24-hour general strike called by Ecuadorian trade union organisations on 17 September 1986 to protest, they claim, against the Government's economic and social policy. During the demonstrations held on the day of the strike, several trade union officials were arrested and then sentenced to two-days' imprisonment. The Government declares that these penalties were justified because of the violence committed during these unauthorised demonstrations and emphasises the political and seditious nature of the strike. Furthermore, the complainant describes difficulties encountered by several trade union organisations in registering their rules or amendments to their rules and the adoption of Decree No. 2205 regulating sympathy strikes.
2. 412. As regards the general strike, the Committee feels bound to recall that it considers strike action to be one of the means of action which should be available to workers' organistions. (See, for example, 243rd Report, Case No. 1296 (Antigua and Barbuda), para. 276.) However, although the right to strike is one of the basic rights of workers and their organisations, this is so only in so far as it constitutes a means to defend their economic and social interests: the prohibition of strikes designed to coerce a government, if they are non-occupational in character, does not constitute an infringement of freedom of association (see, for example, 127th Report, Case No. 60 (Mauritania), para. 303), and strikes of a purely political nature do not fall within the scope of the principles of freedom of association (see, for example, 153rd Report, Cases Nos. 763, 786 and 801 (Uruguay), para. 177.) The Committee has stressed that the concept of economic and social interests should not only imply obtaining better working conditions or ensuring appliance with claims of an occupational nature, but should also include seeking solutions to economic and social policy questions which are of direct concern to the workers. (See, for example, 214th Report, Case No. 1081 (Peru), para. 261.)
3. 413. In the present case, the Committee has sought, on the basis of the information at its disposal, to determine the claims put forward by the trade union organisations in organising this 24-hour general strike. It has ascertained that these mainly comprised requests for an increase in the minimum wage, for the respect of collective agreements in force and for a change in economic policy (price increases and unemployment), all matters which are within the normal field of activity of trade union organisations. The Committee therefore considers that the strike on 17 September 1986 was legitimate and should not have been banned.
4. 414. As concerns the repercussions of the action, i.e. the arrest and sentencing of trade unionists, the Committee notes that, according to the Government, the demonstrations organised during the strike gave rise to acts of violence such as the causing of fires, attacks on members of the police force and vehicles, etc. The Committee notes, furthermore, that the sentences handed down were relatively lenient because those concerned were sentenced to two-days' imprisonment and were able to resume their trade union activities immediately after being released.
5. 415. The Committeee nevertheless feels bound to point out, in the light of the Government's reply, that Ecuadorian legislation provides for very severe penalties for actions of this type; in particular Decree No. 105 stipulates that organisers of a "general work stoppage" are liable to two- to five-years' imprisonment and that those who take part in the strike are liable to three months' to one-year's imprisonment. The Committee also notes that, in the present case, the Government publicly declared, even before the 24- hour general strike had begun, that this Decree was still fully in force, contrary to the information provided in 1982 to the Committee of Experts on the Application of Conventions and Recommendations that it had fallen into disuse. In this respect, the Committee recalls that the Committee of Experts has been requesting the Government for several years to repeal this Decree and that, until now, there has been no favourable follow-up to its comments.
6. 416. Concerning the Ministry of Labour's refusal to approve the rules of organisations in the process of being established or amendments to the rules of organisations already existing, the Committee notes the Government's explanations that the requests in question contained irregularities or that the rules were not in conformity with the legislation in force. The Committee also notes that, in one of the four cases cited by the complainant, the trade union amended its draft rules to comply with the request from the Ministry of Labour, which immediately registered it, and that, in the three other cases, the organisations concerned did not respond to the Ministry of Labour's refusals which set out the reasons for their non-acceptance. In this respect, the Committee notes from the 1983 observation made by the Committee of Experts on the Application of Conventions and Recommendations on the application of Convention No. 87 by Ecuador that, in the case of a refusal by the Ministry of Labour, appeal is possible to the courts under sections 1, 2, 5 and 10 a)of the Administrative Tribunal Act and that the Administrative Tribunal can examine the substance of the matter. In the present case, the organisations concerned apparently failed to make use of the judicial possibilities open to them in the case of a refusal. In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
7. 417. Finally, the Committee examined Decree No. 2205 regulating section 498 of the Labour Code concerning recourse to solidarity strikes. In its 1983 General Survey, the Committee of Experts on the Application of Conventions and Recommendations considered that a general prohibition of solidarity strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful. (See International Labour Conference, 69th Session, 1983, Freedom of Association and Collective Bargaining, para. 217.)
8. 418. In the present case, the Committee notes that Decree No. 2205 does not ban solidarity strikes but only regulates them by limiting recourse to this type of action. In the Committee's opinion, although several provisions contained in the Decree might be justified by the need to respect various procedures (notification of the strike to the labour authorities) or to guarantee security within the undertaking (the prevention of agitators and strike-breakers from entering the workplace), others, however, such as geographical or sectoral restrictions placed on solidarity strikes - which therefore exclude general strikes of this nature - or restrictions on their duration and frequency, constitute a serious obstacle to the calling of such strikes.
9. 419. In this respect, the Committee notes that the trade union organisations have lodged an appeal against Decree No. 2205 with the Tribunal of Constitutional Guarantees, which is at present pending.

The Committee's recommendations

1. 420. In the light of its foregoing conclusions the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee recalls that strikes are one of the essential means of action that should be available the workers' organisations; to this end, it requests the Government to repeal Decree No. 105 which provides for prison sentences for those organising "general collective work stoppages" and those taking part in them, and which, according to the Government, has fallen into desuetude.
   • b) The Committee considers that Decree No. 2205 concerning solidarity strikes contains certain restrictions which constitute a serious obstacle to the calling of such strikes and which are incompatible with the principles of freedom of association.
   • c) It requests the Government to keep it informed of the appeal lodged with the Tribunal of Constitutional Guarantees against Decree No. 2205 concerning solidarity strikes.