Report in which the committee requests to be kept informed of development - Report No 294, June 1994

Case No 1746 (Ecuador) - Complaint date: 16-NOV-93 - Closed

1. 526. The complaint is contained in a communication from the Ecuadorian Federation of Agricultural, Agro-Industrial and Food Workers (FETAL) dated 16 November 1993. The Government sent its observations in a communication dated 7 February 1994.
2. 527. Ecuador has ratified both the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 528. The Ecuadorian Federation of Agricultural, Agro-Industrial and Food Workers (FETAL) states in its communication of 16 November 1993 that the National Police searched the El Prado ranch, which employs more than 40 workers, during the course of "Operation Cyclone" in pursuit of alleged drug traffickers. Subsequently, on the basis of the police report, the criminal courts initiated legal proceedings against the owners of the ranch, who were charged with drug trafficking.
2. 529. In these circumstances, which were detrimental to their rights, the workers, who have no part in the activities of the employers and owners of the ranch, established a trade union ("works council" according to the national terminology) and pending approval by the Minister of Labour, they presented a series of claims to protect their rights.
3. 530. The complainant alleges that the Ministry of Labour returned the documentation concerning the establishment of the trade union on three occasions, each time giving different reasons, in particular the failure to present the legal minimum number of members (half plus one of the total number of workers with a minimum of 30), although evidence of compliance with this requirement had been presented.
4. 531. The complainant states that it subsequently presented a second list of claims which mentioned direct and indirect employers. On 1 November 1993, a new manager of the ranch, who was appointed and whose wages are paid by the National Police, dismissed all the workers. In the context of this second list of claims, the workers declared a strike but were unable to exercise this right since they were prevented from entering the ranch by the police. In the same way, the police began to intimidate workers and delay payment of their remuneration. The worker Dolores Cascota was detained for a certain time in a cell and accused of having taken a small amount of fodder.

B. The Government's reply

1. 532. In its communication of 7 February 1994, the Government states that the Ministry of Labour has been faced with a number of difficulties in dealing with the dispute in the El Prado ranch since the matter concerns an unusual situation in which, following confiscation by the police of assets acquired through drug trafficking, a property has now apparently been left without any lawful owner to settle matters with third parties. There are lacunae in this respect in the Act respecting narcotic and psychotropic substances which was promulgated in September 1990, which says nothing about these obligations. What the Act does prescribe is that the National Council for the Control of Narcotic and Psychotropic Substances - CONSEP - shall act as the depository of confiscated assets and in the final instance dispose of them, either provisionally or definitively. However, in this case CONSEP has not yet been able to assume its role as the legal depository of confiscated assets, so that the assets continue to be held in the custody of the police.
2. 533. The Government adds that amongst the requirements for the establishment of a trade union ("works council" according to the national terminology), the Act stipulates that the assembly must be made up of more than 50 per cent of the workers, but that in no case may a trade union be set up with less than 30 workers. In the case in question, a labour inspector personally visited the El Prado ranch in May 1993 and noted that it employed 17 agricultural workers. The Ministry of Labour and Human Resources therefore refused to register this organization. It should be noted that almost nine months passed between establishment of the special committee (an ad hoc organization exclusively responsible for the representation of the workers during the settlement of the labour dispute) in September 1992 and that of the works council in May 1993 and that during this period some workers who had ceased to be employed by the El Prado ranch had nevertheless participated in the establishment of the works council as if they still had been working in the El Prado ranch.
3. 534. The Government points out that while the labour dispute in the El Prado ranch resulted in the presentation of two lists of claims, workers were in fact dismissed by the National Police. In these circumstances, the Minister of Labour, in fulfilment of his obligation to ensure the respect of workers' rights, personally contacted the highest police authorities and the Minister of the Interior and the Police to ensure the reinstatement, in accordance with the law, of workers who had been dismissed illegally or, failing that, payment of all the respective compensation prescribed by the Labour Code.
4. 535. The Government emphasizes its decision to insist, in the event that the dismissed workers are not reinstated, that the National Police deposit with the Ministry of Labour the necessary funds to pay workers who had been dismissed unfairly all the sums and compensation due to them under the law.
5. 536. Both the Conciliation and Arbitration Court which examined the first list of claims and the court which is examining the second list of claims by workers from the El Prado ranch were notified of the declaration of strike and immediately, in accordance with the provisions of section 492 of the Labour Code, with a view to protecting workers' rights, requested the police authorities to provide the necessary protection to strikers who had to remain in their workplaces. However, the fact that obstacles may arise to the effective application of the instructions of the Courts of Conciliation and Arbitration is a problem which is difficult for the Ministry of Labour to resolve, since it does not have its own means of enforcement, and it is precisely the National Police which should enforce the mandate.
6. 537. At all events, the Ministry of Labour believes that the fundamental objective now is to ensure that this dispute is resolved in a way which meets the demands of the workers and to this end it continues to remain in contact with the leaders of the National Police and the workers with a view to seeking points of agreement and a rapid and satisfactory solution to the dispute.
7. 538. Finally, the Government denies that workers have been temporarily arrested and points out furthermore that no record of such detentions is to be found in the files on this dispute.

C. The Committee's conclusions

1. 539. The Committee observes that this case refers to the refusal of the authorities to register the trade union of workers in the El Prado ranch, the dismissal of workers from this ranch during the examination of a collective dispute by the Conciliation and Arbitration Court (a tripartite body), and obstacles to the exercise of the right to strike and the detention of a woman worker. The Committee notes that these allegations refer to a period in which the El Prado ranch was apparently without any legal owner following the confiscation by police of the fixed assets of drug traffickers (including the ranch in question), so that these assets are now in the custody of the police.
2. 540. The Committee observes that the Government recognizes the existence of illegal dismissals and that obstacles were placed on the exercise of the right to strike by workers in the El Prado ranch, but explains that the Ministry of Labour does not have its own means of enforcement and that it is precisely the National Police which is responsible for ensuring the application of its instructions (concerning the reinstatement or compensation of workers and the free exercise of the right to strike). In this respect, the Committee deplores that the Government has not ensured that the police applied the recommendations of the Ministry of Labour. The Committee requests the Government to take the necessary measures for the reinstatement in their jobs of the workers who were illegally dismissed during the labour dispute and when they were in the process of establishing their trade union.
3. 541. As regards the refusal to register the trade union of workers of the El Prado ranch, the Government argues that in 1993 this union did not have the minimum number of 30 workers required by legislation but only 17. In this respect, the Committee would like to emphasize that in a previous case concerning Ecuador (see 284th report, Case No. 1617, para. 1006), in examining the provisions of Ecuadorian legislation, it considered that the minimum number of 30 workers "should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions". The Committee reiterates this conclusion, requests once again the Government to take measures to amend legislation accordingly, and must point out that it is precisely because workers were illegally dismissed during the labour dispute that the legal minimum number of workers required by the legislation in question could not be met. In these circumstances, the Committee repeats its previous conclusion respecting the reinstatement in their jobs of all workers illegally dismissed and requests the Government to register the trade union of workers in the El Prado ranch.
4. 542. Finally, the Committee observes that the Government denies the arrest of the worker Dolores Cascota and points out furthermore that no such acts were recorded by the parties in the files on the labour dispute.

The Committee's recommendations

1. 543. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take the necessary measures for the reinstatement in their jobs of the workers illegally dismissed at the El Prado ranch.
   • (b) The Committee requests once again the Government to take measures to amend the legislation so as to reduce the minimum number of workers required under the Act (presently 30) in order to establish enterprise unions.
   • (c) The Committee requests the Government to register the trade union ("works council" in the national terminology) of workers in the El Prado ranch.
   • (d) The Committee requests the Government to keep it informed of the effect given to its recommendations.