Report in which the committee requests to be kept informed of development - Report No 297, March 1995

Case No 1767 (Ecuador) - Complaint date: 11-JAN-94 - Closed

1. 285. The complaint in this case is contained in a communication from the Ecuadorean Confederation of Free Trade Union Organizations (CEOSL) dated 11 January 1994. The CEOSL communicated additional information in a letter dated 25 April 1994. The Government sent its observations in a communication dated 31 October 1994.
2. 286. Ecuador has ratified 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. 287. In its communications of 11 January and 25 April 1994, the Ecuadorean Confederation of Free Trade Union Organizations (CEOSL) alleges that on 10 March 1993, hospital assistants belonging to various provincial trade unions in Pinchincha, Imbabura, Tungurahua, Azuay, Loja, Carchi and Chimborazo (provinces of the Republic of Ecuador) decided at their Constituent Assembly to create the Federation of Free Hospital Assistants of Ecuador (FAELE) in accordance with constitutional and legal provisions, as well as with ILO Convention No. 87. The complainant organization states that, although it complied with every requirement under section 439 of the Ecuadorean Labour Code and sent the appropriate documentation to the Ministry of Labour and Human Resources on 12 March 1993, the Director-General of Labour returned this documentation to the FAELE on 12 April 1993, refusing to inscribe the organization in the corresponding registry, on the grounds that "in order to create a federation or confederation, there must be as many constituent organizations as the number required for creating trade unions, in accordance with sections 439 and 446 of the Labour Code." (Section 439, Requirements for the establishment of occupational associations: "For the purposes of the preceding section, the founders of the association, who shall number not less than 30 if they are employees and not less than three if they are employers, shall remit to the Ministry of Labour and Social Welfare the following documents couched on ordinary paper ..." Section 446, Scope of this Division: "Federations and confederations and also associations of salaried personnel in private employment shall be covered by the provisions of this Division.") It was also pointed out that the minutes of the general meetings of the organizations showing that they wished to constitute the federation had not been included.
2. 288. The complainant organization adds that the reasons given by the Office of the Director-General of Labour of Ecuador are not to be found in any legal provision nor in the Labour Code; consequently, the CEOSL once again sent the FAELE documentation to the Ministry of Labour and Human Resources on 19 April 1993, indicating the de facto and de jure bases for its application and drawing attention to the irregularities committed by the Department of Workers' Organizations of the Office of the Director-General of Labour of Ecuador. The complainant organization points out that, although the legal situation was carefully explained, the documentation was again returned after the expiry of the 30-day deadline set in section 440 of the Labour Code - in other words, the provisions of paragraph 2 of this section were not complied with (section 440: Register of occupational associations. "When the Ministry of Labour and Social Welfare has received the above documentation, the Minister shall within 30 days order the registration of the name and particulars of the occupational association or union in the book kept for that purpose by the Office of the Director-General of Labour. If the Minister does not comply either with the provisions of the preceding paragraph or with those of the following section, the legal personality of the occupational association or union shall be recognized de facto.") The CEOSL adds that on 11 May 1993 the documentation was sent to the Ministry of Labour for the third time, and that once again registration was refused for the same reasons given above.
3. 289. Lastly, the complainant organization states that registration of new trade unions of hospital assistants has also been refused. Specifically involved are the Hospital Assistants Unions of the San Lazaro and Pablo Arturo Suarez Hospitals and the Vicente Corral Moscoso Hospital of Cuenca, the Hospital Assistants Union of the Province of Loja and the Hospital Assistants Union of the Province of Cotopaxi. The Government's reason for these decisions is that "the labour relationship of members of these trade union organizations is governed by the laws regulating the public service".
4. 290. The complainant organization also points out that the Government's labour policy is one of hampering the development of new trade union organizations in the public sector, while endeavouring to eliminate the trade union movement in public bodies of the State through a modernization plan and by paying public servants to resign, making budgetary cut-backs and downsizing the state sector. The complainant organization alleges that workers in the following enterprises have been left unemployed after having been paid to resign: Dinace, Ieos, Obras Publicas Fiscales, Enprovit, Enac, Iearac, and Inec, to name the main ones. In the private sector, mass dismissals have taken place at Ecuarosas, Astra, Hallburton, Indulana, Pintex, Industrias Quimicas Novel, la Tejedora, Infarma and others. It adds that all this is undermining the trade union movement in Ecuador; consequently, workers who belong to the Confederation have emphatically opposed the mass dismissal of trade unionists, the illegal lockouts at certain enterprises, the payment of workers to resign under the modernization plan, and the downsizing of the state sector, all of which have merely increased unemployment in Ecuador.

B. The Government's reply

1. 291. In its communication dated 7 February 1994, the Government states that the freedom of association as guaranteed by Convention No. 87 involves certain general parameters established by national legislation which must be respected, and that the exercise of the right to organize for peaceful purposes is provided for in section 19, paragraph 13, of the Political Constitution of the State. The Government adds that this basic guarantee of the right to organize is provided for under the law on the public service and administrative career in the case of public servants, and under the Labour Code in the case of workers in the private and public sector and those in public enterprises.
2. 292. The Government points out that national legislation must be respected. In the specific case of the hospital assistants in the national public health system, there has indeed been confusion and differing criteria concerning the labour regulations applicable to them. The Government states that in order to establish clear-cut criteria in this regard, a legal opinion handed down on 9 August 1990 by the State Attorney General's office indicated that by virtue of the nature of the work carried out by hospital assistants and the degree of training required to obtain a public post of this type, "the characteristics are such that this group should exercise its rights and fulfil its obligations as provided for by the law on the public service and administrative career". Therefore, since the question of the labour regulations applicable to hospital assistants is clear, there is clearly no justification for the establishment of trade unions. If some sort of organization of hospital assistants is desired, the proper procedure would be to create them under the law on the public service and administrative career and to exercising the rights provided for by this law.
3. 293. The Government also states that Title V of the Ecuadorean Labour Code ("Employees' associations; collective disputes"), Chapter I ("Employees' associations"), paragraph 1 ("General rules") contains the rules that govern the creation and registration of workers' organizations. To establish an occupational association, section 439 states inter alia that the number of employees "shall be not less than 30 members". This is the only reference to a number in this paragraph, and section 446, which defines the scope of the paragraph, states that "federations and confederations and also associations of salaried personnel in private employment" are covered by these rules. In other words, the requirement concerning number as stipulated for lower-level trade unions applies to the establishment of federations. The Government states that the national authorities guarantee without restriction the right to organize of those who come under the Labour Code, and that between August 1993 and August 1994 the Department of Workers' Organizations of the Ministry of Labour registered 60 workers' organizations.
4. 294. Lastly, the Government reports that the decisions it has adopted regarding the downsizing of the state sector and boosting of private investment are part of an essential government policy, and that accordingly enterprises and other bodies in the public sector have begun a process of disinvestment, sale of assets and staff cuts, while offering all the guarantees provided for by the law on the modernization of the State enacted in December 1993, whose general purpose was to decentralize and improve the administrative efficiency of the public sector. It adds that at present, through joint action involving the National Secretariat for Public Service Development and the Ecuadorean Vocational Training Service (SECAP), redeployment programmes are being implemented to train workers who leave the public sector for jobs in industry or business.

C. The Committee's conclusions

1. 295. The Committee observes that the allegations presented in this case refer to: (1) the refusal to register the Federation of Free Hospital Assistants of Ecuador (FAELE); (2) the refusal to register various workers' trade unions in this sector; and (3) the mass dismissal of workers in the public and private sector.
2. 296. Concerning the refusal to register the Federation of Free Hospital Assistants of Ecuador (FAELE) and to register various workers' trade unions in this sector (the Hospital Assistants Unions of the San Lazaro and Pablo Arturo Suarez Hospitals and the Vicente Corral Moscoso Hospital of Cuenca, the Hospital Assistants Union of the Province of Loja and the Hospital Assistants Union of the Province of Cotopaxi), the Committee takes note of the Government's statement that hospital assistants come under the law on the public service and administrative career by virtue of the nature of the work they carry out and that, consequently, there is no justification for them to establish trade unions (though they may form associations). The Committee also notes the Government's statement that under section 439 of the Labour Code at least 30 members are required to form a workers' organization, and that this provision is also applicable to the number of lower-level trade unions needed to create a federation.
3. 297. In this regard, the Committee points out that the Government's arguments are contradictory. On the one hand, the Government states that, according to a decision by the State Attorney-General, hospital assistants are governed by the law on the public service and administrative career and not by the Labour Code; on the other hand, it cites a provision from this same Code relative to the minimum number of trade unions required to constitute a federation in order to refuse registration of the Federation of Free Hospital Assistants of Ecuador.
4. 298. As regards the requirement of a minimum of 30 trade unions to create a federation - the reason for refusing to register the Federation of Free Hospital Assistants of Ecuador (FAELE), as evidenced by the documentation submitted by the complainant organization and confirmed by the Government - the Committee would like to point out that on several previous occasions it has criticized legal requirements setting a minimum of five trade unions to create a federation (see 85th Report of the Committee, Case No. 355 (Peru), para. 455, and 197th Report, Case No. 823 (Chile), para. 389). The Committee notes that in this case the situation is even more serious, since the authorities are demanding a minimum of 30 trade unions. In these circumstances, and drawing the Government's attention to the fact that legislation which requires an excessively high minimum number of trade unions to establish a higher-level organization conflicts with Article 5 of Convention No. 87 and with the principles of freedom of association, the Committee urges the Government to take the necessary measures to modify the legislation in force and its application so as to guarantee that there are no obstacles to the freedom to establish federations and confederations. The Committee also urges the Government to register the Federation of Free Hospital Assistants of Ecuador (FAELE) and to keep it informed in this respect.
5. 299. The Committee also observes that non-compliance with the above-mentioned numerical requirement is not the only impediment to establishing a workers' organization among hospital assistants. According to the Government, such workers do not enjoy the right to organize as guaranteed by the Labour Code since they are considered to be public servants. Although the Government states that under the law on the public service and administrative career these workers may form associations, the Committee points out that under that law workers who are members of such associations have fewer rights than do trade unionists (e.g., as regards collective bargaining). Accordingly, the Committee draws the Government's attention to the principle that "the denial of the right of workers in the public sector to set up trade unions ... with the result that their associations' do not enjoy the same advantages and privileges as trade unions' involves discrimination as regards government-employed workers and their organizations, as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers without distinction whatsoever' shall have the right to establish and join organizations of their own choosing without previous authorization" (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 216).
6. 300. The Committee further emphasizes that for more than ten years the Committee of Experts on the Application of Conventions and Recommendations has pointed out that prohibiting Ecuadorean public servants from establishing trade unions restricts the full application of Convention No. 87. In such circumstances, the Committee considers it unacceptable that public servants cannot freely exercise the right to organize as guaranteed by Convention No. 87. The Committee urges the Government to take the necessary measures to modify the legislation in force so that public servants are free to establish and join organizations of their own choosing and to register the hospital assistants trade unions which have been denied registration (the Hospital Assistants Unions of the San Lazaro and Pablo Arturo Suarez Hospitals and the Vicente Corral Moscoso Hospital of Cuenca, the Hospital Assistants Union of the Province of Loja and the Hospital Assistants Union of the Province of Cotopaxi). The Committee requests the Government to keep it informed in this respect and draws the attention of the Committee of Experts to the legislative aspects of this case.
7. 301. As regards the alleged mass dismissal of workers and their being paid to resign in the public and private sector, which the complainant claims is meant to prevent the establishment of new trade union organizations, the Committee takes note of the Government's statement that a policy of downsizing the state apparatus is being implemented and that accordingly, under the law on the modernization of the State, a process of selling off assets and staff cutting has been initiated in order to decentralize and improve the administrative efficiency of the public sector. The Committee likewise takes note of the Government's statement that retraining programmes are being implemented for workers who were formerly in the public sector.
8. 302. Recalling that it has previously had occasion to examine allegations of dismissals as part of rationalization processes, the Committee emphasizes, as it has done before, that "it can examine allegations concerning economic rationalization programmes and processes - whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector - only in so far as they might have given rise to acts of discrimination or interference against trade unions. (see 291st Report of the Committee, Case No. 1708 (Peru), para. 189; 286th Report, Case No. 1609 (Peru), para. 434; and 292nd Report, Cases Nos. 1620 and 1702 (Colombia), para. 280).
9. 303. In this case, the complainant organization has not furnished proof or evidence that the alleged actions can be described as anti-trade union in nature, as regards either public sector or private sector enterprises. (The complainant organization has not furnished names of those dismissed, nor has it stated whether the dismissals involve only trade unionists, the proportion of trade union leaders dismissed, etc.) The Committee consequently does not consider that it is in a position to rule on this allegation.
10. 304. None the less, the Committee stresses the importance of consulting trade union organizations on the implementation of personnel rationalization programmes. The Committee therefore requests the Government to take this measure if it has not yet done so.

The Committee's recommendations

1. 305. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take the necessary measures to modify the legislation in force and its application in order to lower the minimum number of trade unions required to establish an upper-level organization, to guarantee freedom to establish federations and confederations, without hindrance.
   • (b) The Committee urges the Government to remove the ban on public servants to establish and join trade unions and to register the Federation of Free Hospital Assistants of Ecuador (FAELE), as well as the hospital assistants trade unions it has refused to register (the Hospital Assistants Unions of the San Lazaro and Pablo Arturo Suarez Hospitals and the Vicente Corral Moscoso Hospital of Cuenca, the Hospital Assistants Union of the Province of Loja and the Hospital Assistants Union of the Province of Cotopaxi). The Committee requests the Government to keep it informed in this respect.
   • (c) The Committee draws the attention of the Committee of Experts to the legislative aspects of this case.
   • (d) As regards the dismissals resulting from personnel rationalization programmes, recalling the importance of consulting concerned trade union organizations in this respect, the Committee requests the Government to take this measure if it has not yet done so.