Report in which the committee requests to be kept informed of development - Report No 332, November 2003

Case No 2201 (Ecuador) - Complaint date: 27-MAY-02 - Closed

Allegations: Violation of the right to strike at the Los Alamos ranch. Specifically, an invasion by hundreds of armed attackers who shot at the strikers, wounding 12 workers (two seriously), abuse of workers and looting of their property, and the introduction onto the ranch of strike-breakers supported by hired assassins

1. 536. The Committee examined this case at its November 2002 meeting and submitted an interim report to the Governing Body [see 329th Report, paras. 493-511, approved by the Governing Body at its 285th Session (November 2002)]. The Government sent further observations in communications dated 14 November 2002 and 8 January and 30 April 2003.
2. 537. 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. Previous examination of the case

1. 538. The complainant organizations had alleged serious violations of the right to strike at the Los Alamos ranch in May 2002. According to the complainants, the response to the strike was an invasion of the plantations by hundreds of armed and hooded men, who wounded 12 workers (two seriously). It was also alleged that the attackers abused a group of 60 to 80 workers and looted workers’ belongings; the attackers were subsequently evacuated by helicopter. Finally, it was alleged that, when negotiations began, the employers brought in strike-breakers accompanied by hired assassins [see 329th Report, para. 506].
2. 539. As regards the labour aspects of the conflict at the Los Alamos ranch, the Committee noted at its November 2002 meeting that the allegations were connected with the negotiation of a collective agreement and that the complainant recognized that there had been negotiations, but stated that the employers would not compromise and, while acknowledging that the labour legislation was not being complied with, still ignored the issues of reinstatement of the dismissed workers, job security and compensation for the injured. The Committee noted that the Government had provided information on the steps taken by the authorities in accordance with the normal procedures for labour disputes (independent mediation and the simultaneous intervention of three Conciliation and Arbitration Tribunals) [see 329th Report, para. 509].
3. 540. The Committee made the following recommendations [see 329th Report, para. 511]:
4. As regards the allegations of serious wounding of trade unionists and abuse and aggression against strikers and their property at the Los Alamos ranch, the Committee emphasizes the gravity of the allegations. The Committee urges the competent authorities to ensure immediately that an investigation and legal proceedings are commenced to find out what happened, define responsibilities, punish the guilty parties, and award compensation and prevent such incidents happening again. The Committee requests the Government to inform it in this respect.
5. The Committee requests the Government to encourage negotiation in good faith between the parties with a view to the conclusion of a collective agreement on general working conditions, hopes that the three Conciliation and Arbitration Tribunals will pronounce without delay on other, more specific issues relating to the strike at the Los Alamos ranch (dismissals, compensation of the injured, the introduction of strike-breakers, etc.) and requests the Government to inform it in this respect.
6. B. The Government’s replies
7. 541. In its communications of 14 November 2002 and 8 January and 30 April 2003, the Government states that at the time when the current complaint was made there were no trade unions at the Los Alamos ranch and it is inappropriate to speak of the serious wounding of “trade unionists”. While it is true that there were alleged criminal acts on the premises of the Los Alamos ranch, these are not related to the infringement of the rights embodied in ILO Conventions Nos. 87 or 98, but are purely of a criminal nature. The alleged injured parties did not submit specific accusations and as a result the criminal proceedings were based on the accused’s statement and the subsequent indictment. On 28 January 2003, the judicial authority adopted a ruling whereby 16 individuals were charged as the alleged culprits of the offence defined in section 162 of the Penal Code in accordance with section 470 of the same Code without ordering preventive detention, in accordance with the provisions of section 173 of the Code of Penal Procedure. Section 162 of the Penal Code provides penalties for civilians who carry firearms without authorization, while section 470 defines as an offence a dispute or assault in which more than two people are involved and which causes wounds or injuries, without stating who caused the injuries; in such cases, the alleged culprits are deemed to be those who exercised violence against the aggrieved party. In addition section 173 of the Code of Penal Procedure provides that if the penalty for the offence is not longer than one year, preventive detainment will not be ordered; the same applies in private actions (in this case there was no specific accusation). This explains why those accused have not been detained. The judge will determine the penalty to be applied, depending on the severity of the various actions that contributed to the offence or crime.
8. 542. As regards the labour aspects of the complaint, the Government states that the Ministry of Labour and Human Resources set up a specialized commission of investigation, in which a workers’ representative participated, and which concluded as follows:
9. – the lists of demands submitted included individuals who no longer worked at the enterprise (including those who presented themselves as leaders of the “special committee” of workers);
10. – most of the workers were placed by private placement agencies that have their own trade unions which cannot conclude collective agreements with the Industrial Bananera Los Alamos, although they could do so with the private agencies in question;
11. – the parties did not meet at the mediation stage (owing in particular to the fact that the workers failed to attend on three occasions and the employer failed to attend on one);
12. – some dismissals of workers occurred before the submission of the lists of demands; on 8 March 2002 the employers appeared before the head of the labour inspectorate to announce the unilateral termination of employment of 43 workers, as well as the amounts of compensation that would be paid. As a result, a further administrative procedure is not possible, as there is no legislation in the country providing for the reinstatement of workers dismissed in this way;
13. – the collective agreements submitted by the trade unions from the private placement agencies (BEDUCORP S.A., CLIADI S.A. and NEMRO S.A.) were returned to the workers on 6 December 2002 for them to comply with the legal requirements that were missing from their demands;
14. – the rulings of the Conciliation and Arbitration Tribunals are similar for CLIADI S.A., NEMRO S.A. and BEDUCORP S.A., owing to the basic similarity of the circumstances relating to the claims; in the ruling, the proceedings instituted were declared to be null and void as a result of various defects and failure to meet legal requirements;
15. – on 14 October 2002, the Conciliation and Arbitration Tribunals, in a majority decision, rejected the appeal lodged by the workers, for the following reasons: (1) according to the records of the assembly on 23 September 2002, the (former) strikers who requested the appeal presented 144 signatures with their appeal; (2) examination of those signatures shows that some signatures were repeated, and it was found that some of the people on the list did not work at the enterprise in question, which was substantiated by records of social security contributions made in February 2002; the fact that 29 of the workers in question claim not to have attended the assembly on 23 September 2002; and that as a result it is not their signatures that appear on the record (these claims have been recognized and endorsed before a public notary); and (3) the ruling of the Tribunal that the lists of demands is null and void cannot be appealed against. For all these reasons, it was decided to close the case definitively.
16. 543. The specialized commission of investigation noted an omission on the part of the labour inspector who received notification of the strike, in that he failed to implement the provision of section 506 of the Labour Code and its amendments by failing to obtain immediate assistance with a view to safeguarding order and safety (of employers and workers) and preventing the involvement of strike-breakers. This particular circumstance was taken into consideration by the Ministry of Labour, and had an adverse influence on the subsequent course of events.
17. 544. Lastly, the Government forwarded a police report of September 2002 according to which the former workers were no longer in the vicinity and both employers and workers were working normally.

C. The Committee’s conclusions

1. 545. First, the Committee notes the Government’s statements to the effect that in the present case there are no grounds for alleging wounding of “trade unionists” or any other criminal acts linked with the violation of rights embodied in ILO Conventions Nos. 87 or 98, since at the time when the complaint was made there were no trade unions at the Los Alamos ranch. Nevertheless, the Committee emphasizes that in its reply the Government stated that most of the workers were placed by private employment agencies which had their own trade unions, but that these unions were not able to conclude a collective agreement with the Industrial Bananera Los Alamos (although they were able to do so with the private agencies).
2. 546. As regards the allegations regarding the wounding of workers (12 were injured, two of them seriously), abuse and assaults against strikers and their property, dating from May 2002, the Committee notes the Government’s statements regarding the criminal proceedings in which 16 individuals have been charged with unlawful possession of firearms and assault involving more than two persons causing injuries. The Government also states that the labour inspector failed to obtain assistance to safeguard the physical safety of persons and public order and prevent the involvement of strike-breakers. The Committee deplores, and emphasizes the gravity of the allegations regarding different acts of violence and intimidation resulting from a strike, and notes that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety are fully respected in a climate free of violence, pressure or threats of any kind; and that it is for governments to ensure that this principle is respected. The Committee requests the Government to forward the text of the court ruling handed down, and hopes that those who suffered injury or loss of property will be properly compensated. Lastly, the Committee requests the Government to take measures to prevent violence against workers in the future in connection with collective disputes, and to ensure that the labour inspection authority immediately requests assistance from the police in protecting the physical integrity of individuals when they are under real threat during such disputes.
3. 547. As regards those aspects of this case relating to labour rights (dismissals of workers, difficulties with collective bargaining), the Committee notes the Government’s statements made during the previous examination of the case, to the effect that two special workers’ committees disputed the right to represent workers. The Committee notes the Government’s latest statements to the effect that the workers’ lists of demands included many individuals who had already ceased to work at the undertaking when the demands were presented; that the workers failed to attend three mediation meetings, and the employers failed to turn up at one; that 43 workers had been dismissed before the list of demands was presented and all of them received compensation for untimely dismissal; that there are furthermore no laws in the country which provide for the reinstatement of unfairly dismissed workers; that the collective agreements presented in the private employment agencies did not meet legal requirements; and that legal requirements were not met with regard to workers’ claims. The Committee notes that the Conciliation and Arbitration Tribunals have definitively closed the file, according to the Government. Under the circumstances, and bearing in mind the various problems that arise from this case and the absence of any possibility of new judicial proceedings, the Committee appeals to the Government to promote dialogue and collective bargaining in future in respect of all workers employed at the Los Alamos ranch.
4. 548. The Committee requests the Government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights can be reinstated in their posts.
5. 549. Noting that the penal legislation applicable in this case with respect to serious acts of violence gave rise to sanctions of only one year imprisonment, the Committee requests the Government to take measures so that sanctions for such violent acts against trade unionists are sufficiently dissuasive.

The Committee's recommendations

1. 550. In the light of the foregoing preceding conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deplores the violent acts perpetrated against strikers and workers at the Los Alamos ranch in May 2002 and requests the Government to communicate the text of the ruling handed down, and hopes that those who suffered injury or loss of property will be properly compensated.
   • (b) The Committee requests the Government to take measures to prevent violence against workers in the future in connection with collective disputes, and to ensure that the labour inspection authority requests immediate assistance from the police in protecting the physical integrity of individuals when they are under real threat during such disputes.
   • (c) The Committee appeals to the Government to promote in future dialogue and collective bargaining in respect of all workers employed at the Los Alamos ranch.
   • (d) The Committee requests the Government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights can be reinstated in their posts.
   • (e) The Committee requests the Government to take measures so that sanctions for serious violent acts against trade unionists are sufficiently dissuasive.