Definitive Report - Report No 302, March 1996

Case No 1848 (Ecuador) - Complaint date: 08-AUG-95 - Closed

Allegations: Threatened denial of the right to join trade unions in the public sector

1. 132. The complaint in Case No. 1848 was submitted in a joint communication from the Association of Employees and Manual Workers of the Ecuadorian Electrification Institute (AEOI/INECEL), the Federation of Petroleum Workers, the United Workers' Front (FUT), the Ecuadorian Confederation of Workers' Class Organizations (CEDOCUT), the Workers' Confederation of Ecuador (CTE) and the Ecuadorian Confederation of Free Trade Union Organizations (CEOLS), dated 8 August 1995. The Government sent its observations in a communication dated 9 November 1995.
2. 133. Ecuador has ratified the Freedom of Association and the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 134. In their communication of 8 August 1995 the Association of Employees and Manual Workers of the Ecuadorian Electrification Institute (AEOI/INECEL), the Federation of Petroleum Workers, the United Workers' Front (FUT), the Ecuadorian Confederation of Workers' Class Organizations (CEDOCUT), the Workers' Confederation of Ecuador (CTE) and the Ecuadorian Confederation of Free Trade Union Organizations (CEOLS) state that paragraph 13 of section I of the 1979 Constitution on "personal rights" provides for "the right of association and of free assembly for peaceful purposes", and that article 125 of section IV on the entities of the public sector reads:
   • the following shall be considered as entities of the public sector: (a) the different national agencies and administrative dependencies; (b) the entities comprising provincial or cantonal administration, within the civil administrative regime; (c) the juridical persons established by law for the exercise of national power or for providing public services or for economic activities assumed by the State and those established by provincial or cantonal legislative act for providing public services. ... The juridical persons created by law or by local legislative act for providing public services or those created for economic activities assumed by the State govern the relations with their employees in accordance with the Labour Code, except for persons who exercise functions of direction, management, representation, advisory services, departmental direction or the like, which are subject to the laws regulating public administration.
   • The complainant organizations state that the right of public sector workers to join trade unions is thus established without restriction and that, under this constitutional precept, respectable workers' organizations such as the Association of Employees and Manual Workers of INECEL and the organizations affiliated to the National Federation of Petroleum Workers of Ecuador have been set up.
2. 135. The complainant organizations point out that, with the renumbering of the provisions of Ecuador's Political Constitution, article 125 became article 128 (with the same rights), but that in January 1995 the Congress decided to repeal the article; as was to be expected, this decision was immediately endorsed by the President of the Republic. The complainant organizations allege that this has dealt a deadly blow to the right of public sector workers to join trade unions and, worse still, means the dissolution of all trade unions in the sector.

B. The Government's reply

1. 136. In its communication dated 9 November 1995 the Government states that the amendments to article 128 of the Constitution, which were adopted by the National Congress in 1995 and partially vetoed by the President of the Republic and which were taken up and approved by the National Congress once again in July, have not been published in the Official Bulletin, an indispensable formal requirement for any constitutional or legal provision to enter into force. (Section 5 of the Civil Code provides that a law is binding only in so far as it has been promulgated by the President of the Republic and the necessary time has elapsed for the public to be duly notified; laws and decrees must be promulgated in the Official Bulletin, on which date they assume legal force.) The Government adds that, consequently, the amendments to article 128 of the Constitution approved by the National Congress have not entered into force and therefore do not apply. The Government states that no public sector trade union has been dissolved but that, on the contrary, they are all permanently represented in the discussion of major national issues.

C. The Committee's conclusions

1. 137. The Committee observes that the complainant organizations allege that article 128 of the Political Constitution of Ecuador has been repealed by the National Congress. It also observes that the complainant organizations state that it was precisely that article that established the right for public sector workers to join trade unions and that its repeal means the dissolution of all existing trade unions in the sector.
2. 138. The Committee notes the Government's assertion, to the contrary, that the amendments to article 128 of the Constitution approved by the National Congress have not been published in the Official Bulletin and that this is an indispensable formal requirement for any constitutional or legal provision to enter into force. The Committee further notes the Government's assertion that, since the amendments have not entered into effect, they do not apply and that no public sector trade union has been dissolved.
3. 139. Since in the present situation there is a potential danger of the right of public sector workers to join trade unions being suppressed, the Committee draws the Government's attention to the fact that, under Article 2 of Convention No. 87, public servants and employees have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing.
4. 140. Under these circumstances, the Committee urges the Government to ensure that any possible reform of article 128 of the Constitution will not restrict in any way the right of public servants and employees and of public sector workers in general to form and join trade unions, as this would constitute a most serious violation of freedom of association.

The Committee's recommendations

1. 141. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges the Government to ensure that any possible reform of article 128 of the Constitution will not restrict in any way the right of public servants and employees and of public sector workers in general to form and join trade unions.