Interim Report - Report No 354, June 2009

Case No 2684 (Ecuador) - Complaint date: 17-NOV-08 - Follow-up

Allegations: Legislation contrary to trade union independence and the right of collective bargaining; dismissals of trade unionists

1. 726. The complaint is contained in communications from the National Federation of Workers of the State Petroleum Enterprise of Ecuador (FETRAPEC), Public Services International (PSI) and the Single Trade Union Organization of Health Ministry Workers (OSUNTRAMSA) dated, respectively, 20 November 2008, 22 December 2008 and 24 February 2009. FETRAPEC sent additional information in a communication dated 28 January 2009. Subsequently, recent communications from the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) dated 16 March and 20 May 2009 have been received and were transmitted to the Government.
2. 727. The Government sent its observations in communications dated 9 January, 16 February and 19 March 2009.
3. 728. 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. Allegations of the complainants

1. 729. In its communications dated 20 November 2008 and 28 January 2009, FETRAPEC recalls that the principle of collective autonomy to which ILO Convention No. 98 refers is based on the need to respect agreements or understandings adopted by employers and organized workers on conditions of work. It is based on the development of contract law in social affairs and, specifically, is crystallized in the right to collective bargaining of labour, an institution recognized by practically every country in the world.
2. 730. FETRAPEC explains that late in 2007, in Ecuador, the Constituent National Assembly was installed and is carrying on its activities. The Assembly is the body designated by the people at the ballot box to draw up a new political constitution and reform the institution of the State. Its powers are set out in the statute issued by the constituent power itself.
3. 731. It is essential to recognize that this Assembly has legislative powers, that is, the power to reform existing secondary laws through, of course, the procedures established in the respective laws. However, the majority of its members decided, in at least 20 cases, to issue so-called “Constituent Resolutions” (mandatos constituyentes) which are instruments, sui generis, not subject to the rules for the formation of a law and, thus, are considered as bodies of law not subject to reform or challenge, which has no acceptable legal basis. They are a kind of decree or resolution issued by the majority of the members of the Assembly, allied to the Government, which reform existing legislation in various areas including labour law.
4. 732. In this regard, the Constituent Assembly received a mandate from the Ecuadorian people, the original constituent, as constituent power to elaborate a new political constitution and change the country’s institutional framework. Then there would be no reason for issuing these resolutions which could even become immutable instruments by virtue of the fact that they do not exist in the Ecuadorian legal system.
5. 733. Thus, for example, Resolutions Nos 002, 004 and 008 of the Constituent Assembly re-establish the anti-democratic and authoritarian principle of annulling, by decree, existing laws on collective bargaining, which nullifies intangible labour gains, in accordance with the Political Constitution of the State (article 35, paragraphs 3 and 4). Official pronouncements have arisen with more drastic violations of the principle of collective autonomy enshrined in ILO Convention No. 98. The declarations, for example, of the member of the Government party, then Vice-President of the Constituent Assembly, who then assumed the presidency of the body, that unionization and collective bargaining in the public sector should be abolished, is clear evidence of the reactionary, anti-worker and anti-trade union position of the government authorities, ignoring the fact that all around the world and in Ecuador there are international Conventions in force such as Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, for all workers, without any discrimination, both blue and white collar, rural or urban, private or public sector, etc. and Convention No. 98 on the Right to Organise and to Bargain Collectively.
6. 734. FETRAPEC states that the so-called “Constituent Resolution No. 002”, apart from setting an upper limit on the unified remuneration without, on the other hand, establishing a minimum remuneration which in some way compensates for the high cost of living, provides in article 8 that compensation for abolition of posts or termination of employment “agreed in collective agreements, contracts, settlements and any agreement howsoever called …” shall have a limit.
7. 735. In other words, the public authority decrees reforms to collective agreements and contracts legally concluded, ignoring the parties to the labour relation, breaching the fundamental principle of “collective autonomy”, in violation of Conventions Nos 87 and 98.
8. 736. In Constituent Resolution No. 004, these violations are compounded by the express affirmation that they also refer to compensation for unfair dismissal set out in legally concluded collective agreements, giving rise to the possibility of mass dismissals of workers in the public sector by the arbitrary and discretionary use of this provision and thereby affecting, in particular, the right to stability of employment.
9. 737. Constituent Resolution No. 008 provides:
10. That for the sake of fairness in work, it is necessary to revise and regulate the clauses of collective agreements concluded by public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, which contain unreasonable and excessive privileges and benefits of minority groups which run counter to the general interest and the workers themselves …
11. 738. While it is true that rules are being imposed on the public sector, i.e. State institutions or enterprises, it is their representatives which have concluded collective agreements, contracts which must be respected, and it is essential to wait before legislating so that in the future such “excesses” or “abuses” which may exist may be prevented through subsequent collective bargaining.
12. 739. Furthermore, the general provisions of Resolution No. 008 openly provide for interventionism:
13. Four: Collective bargaining in public sector institutions is guaranteed ... adjusted to the terms established in the Constituent Resolutions and in the regulations of the Ministry of Labour and Employment.
14. The transitional provisions provide:
15. Three: Clauses of collective agreements which are in force and which were signed by public sector institutions ... shall be automatically adjusted to the provisions of the Constituent Resolutions and regulations issued by the Ministry of Labour and Employment within a period of 180 days.
16. The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly and shall establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to trade union officials, payment of holidays and recognition of other benefits for the worker’s family group, additional gratuities and bonuses for voluntary retirement, free supply of the company’s goods and services, among other clauses of that kind.
17. Clauses of collective agreements which are not adjusted to the parameters to which this transitional provision refers and which contain unreasonable and excessive privileges and benefits which run counter to the general interest are void in law. Judges, courts and administrative authorities shall enforce this provision.
18. Four: The executive authority, in the course of social dialogue, within a period of one year, shall establish the principles governing collective agreements in all public sector institutions ... which may not be modified.
19. 740. FETRAPEC states that it does not deny that there may be excesses in certain extravagant compensation and bonuses, but these must be amended in accordance with normal and reasonable practice, through collective bargaining, i.e. according to its nature by free and voluntary bilateral agreement of the contracting parties (employer and workers) but in no way through the subjective and arbitrary intervention and imposition by the Government, through civil servants who are known to engage in irregular and suspect practices aimed at generally harming workers’ interests.
20. 741. These now notorious resolutions not only nullify clauses of legally concluded collective agreements, but also refer to settlements which are also final and binding, which is also extraordinary, since what moderately intelligent person would enter into a contract or settlement in the Ecuadorian public sector if later some assembly members or legislators could nullify such instruments legally and freely concluded by the parties?
21. 742. FETRAPEC requests the Committee on Freedom of Association to send a mission to Ecuador as a matter of urgency.
22. 743. In its communication of 28 January 2009, FETRAPEC mentions that the third paragraph of the third transitional provision of Constituent Resolution No. 008 states that the revision of collective agreements is to establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or death of the worker, additional hours and overtime not worked and paid to trade union officials, payment of holidays and recognition of other benefits for the worker’s family group, additional gratuities and bonuses for voluntary retirement, free supply of the company’s goods and services, among other clauses of that kind.
23. 744. It should be clarified that the collective agreements of the State Petroleum Company of Ecuador (Petroecuador) do not contain any such clauses. However, the last sentence has perverse intentions and clearly leaves open the possibility that not only one or more of the clauses but the entire content of the collective agreement might be qualified as a privilege or excess by those who have the power to decide the matter.
24. 745. Under the said Constituent Resolutions Nos 002, 004 and 008, the regulations for the application of Constituent Resolution No. 008, issued by the President of the Republic by Executive Decree No. 1121, published in the Official Journal (Registro Oficial) No. 353 of 25 June 2008, basically reproduce the text of the resolution but, in the part referring to the revision of public sector agreements (third transitional provision) among the clauses qualified as excesses or privileges, in addition to those indicated in Resolution No. 008, additionally includes: compensation for change or substitution of employer, contributions by the entity or company to extra-statutory or personal pension funds, contributions by the entity or company to trade union activities, holidays additional to those laid down by law and other clauses of that kind.
25. 746. The Minister of Labour, relying on the power conferred by Resolution No. 008 to define regulations, on 8 July 2008 issued Ministerial Order No. 00080, published in the Official Journal No. 394 of 1 August 2008, article 8 of which mentions as clauses which must be considered excesses or privileges (in the subjective opinion of the Minister) the suspension of work to hold meetings and other trade union activities without the prior authorization of the corresponding authority, adding the familiar phrase “and other clauses of that kind”.
26. 747. The same authority issued Ministerial Order No. 00155A of 2 October 2008, published in the Official Journal No. 445 of 14 October 2008, setting out rules of procedure for the unilateral revision of collective agreements – repudiating the sense, including grammatical, of revision of contracts, which must be done by the contracting parties, without that constituting a rejection or diminishing of the rights acquired by collective bargaining, law or custom, as enshrined in the Political Constitution of 1998 and that in force in 2008 – and proceeded to declare in some cases nullity in law with the consequent abolition of rights and benefits, and in other cases reducing or diminishing them, as can be seen from the minutes of the revision of the sixth collective agreement between Petroecuador and the Single Enterprise Committee of Workers of Petroecuador (CETAPE) of 16 October 2008; the fourth single collective agreement between Petroproducción and the National Enterprise Committee of Petroproducción Workers (CENAPRO) of 13 October 2008; the sixth collective agreement of Petrocomercial between Petrocomercial and the National Enterprise Committee of Petrocomercial Workers (CENAPECO) of 9 October 2008, and the sixth single collective agreement between Petroindustrial and the National Enterprise Committee of Petroindustrial Workers (CETRAPIN) of 8 October 2008.
27. 748. It is essential to carry out a brief analysis of the above Ministerial Order No. 00155A, as its content breaches ILO Conventions Nos 87 and 98, certain universal human rights, as well as contravening constitutional provisions, and even common sense. Thus, the relevant part of paragraph 2 states: “this revision process by the commission establishes that from the procedural standpoint, clauses of a collective agreement may be declared void in law, amended partially or fully, in the exercise of the discretionary power granted to this body under Constituent Resolution No. 008, the regulations in application thereof and Ministerial Order No. 00080”.
28. 749. Nowhere does Constituent Resolution No. 008 provide that the revising commission should be made up solely of officials of the Ministry of Labour and Employment. This was defined arbitrarily by the Minister in article 1 of Ministerial Order No. 00080, which shows the absence or elimination of the parties to the labour relation in bargaining and signing, including the revision, which is likewise being negotiated and signed, of collective agreements. Likewise, the “discretionary powers” granted to the commission to declare void in law, or amend in part or in full, the clauses of collective agreements defies legal logic. This commission even violates the third transitional provision of Resolution No. 008 which expressly rules that the revision shall be carried out with the participation of employers and workers.
29. 750. Paragraph 3 of the order states that the parties (employers and workers) may express principles, opinions and proposals, contributions which will be appraised by the commission applying the principle of healthy criticism, wrongly interpreted by the commission, since in practice it meant that workers are invited merely as observers before the Ministry of Labour and Employment acting as judge and party for collective bargaining in the public sector.
30. 751. Paragraph 4 states, among other matters: “the minute of revision of the collective agreement shall not be open to complaint, challenge, action for protection (amparo), demand, claim by the company or workers, or any administrative or judicial opinion or judgement, which shall be expressly stated in the said document”. This text demands comment and, in itself, proves the violation, among other universal human rights, of the effective protection of the rule of law, i.e. that any person has the right to assert his rights and interests in the courts and the right to defence in its most widely accepted sense.
31. 752. Paragraph 7, in a nutshell, indicates that the revision shall be carried out with or without the presence and participation of one or both parties. This means that the revision is carried out by a third party even without the presence and, even worse, without the consent of the parties to the labour relationship. This process of revision, an exclusive prerogative of the commission consisting of the Ministry of Labour and Employment, prohibits the parties from negotiating or challenging the nullity or amendment of the contractual clauses as stated absurdly in paragraph 15.
32. 753. Paragraph 17 defies common sense and is an insult to intelligence, when it prescribes that if one of the parties (workers or employers) leaves the session, this act will mean tacit acceptance of the work of the revising commission. Anywhere in the world, if in a meeting or bargaining process, one of the parties leaves, it means an expression of rejection, opposition, a contrary assertion and not acceptance or approval as is indicated so absurdly in that paragraph.
33. 754. The Ministry of Labour and Employment is in breach of Resolution No. 008, itself challenged by the trade union organization, which set a period of 180 days for the process of revision of collective agreements in the public sector. Precisely, in the referendum to approve the new Political Constitution of 28 September 2008, as recently as 2 October 2008, it issued Ministerial Order No. 00155A, that is 28 days before the end of the time limit and carried out the unilateral revision of approximately 120 collective agreements at national level.
34. 755. Faced with the reality of this extremely tight period for the revision, the President of the Republic issued Executive Decree No. 1396 of 16 October 2008 which amends No. 1121 and extends the period of 180 days to one year, omitting the time limit set out in Resolution No. 008, and without the constitutional or legal authority or power to do so.
35. 756. Merely as examples of violations of the ILO International Conventions, therefore, and the rights of labour and workers’ organizations, it should be noted, among other things, that there is now no paid trade union leave nor the possibility of holding meetings in working hours. These are clear evidence of the curtailment of freedom of association and endanger its very existence.
36. 757. All the foregoing, and especially the actions of the Minister of Labour, constitute abuse of the law and usurpation of authority.
37. 758. It should be added, as one of the latest acts of aggression against the rights of workers, that Executive Decree No. 1001 of 1 April 2008, published in the Official Journal No. 317 of 16 April 2008, article 2, prohibits the authorization of new contributions of public funds to entities and organizations in the public sector which are employer’s and personal pension funds, and in Executive Decree No. 1406 of 24 October 2008, published in the Official Journal No. 462 of 7 November 2008, the President of the Republic states that: “With effect from 1 January 2009, no resources of the General Budget of the State shall be paid for any reason to finance employer’s and personal pension funds in the public sector”. This decree was apparently corrected by Decree No. 1493 of 19 December 2008, published in the Official Journal No. 501 of 7 January 2009. However, we should clarify that the correction was a matter of form rather than substance, and the benefit of an employer’s pension for workers covered by the Labour Code is longstanding, and even pre-dates the appearance of this regulatory body, and that our collective agreement and that of other sectors in the public sector, enjoys this benefit economically enhanced. Thus it cannot be ignored as it is sought to be.
38. 759. The legal justification, the abovementioned Constituent Resolutions, brandished by the Minister of Labour and the authorities of that Ministry, is a brittle one, and at least demands some pause for thought, in that the very body which issued them, in Constituent Resolution No. 23, published in the supplement to Official Journal No. 458 of 31 October 2008, in the first paragraph of the single general provision, states: “Resolutions issued by the Constituent Assembly are in full force. Their reform requires the adoption of the procedure set out in the Constitution of the Republic of Ecuador for constitutional acts”. The foreseeable uncertainty appears from the text in question in that it contradicts the universally accepted legal axiom that in law, things are undone as they are done. It would not be permissible, for example, for an ILO Convention to be amended by a body and procedure other than the one which approved it.
39. 760. FETRAPEC reports that the infringements of the freedom of association and collective bargaining recognized and guaranteed in Conventions Nos 87 and 98 of the ILO were brought to the attention of the Andean Labour Advisory Council, an organ of the Andean Community of Nations to which Ecuador belongs, the presidency of which is held for the time being by the President of Ecuador. This Council, in a meeting held in the Ecuadorian city of Salinas on 22 January 2009, resolved “to urge the Constitutional President of the Republic of Ecuador to respect labour rights”.
40. 761. FETRAPEC also alleges that on 13 June 2008 the following trade union officials were given written notice of summary dismissal: Mr Edgar de la Cueva, Chairman of the Single Enterprise Committee (CENAPRO); Mr Ramiro Guerrero, Chairman of the National Enterprise Committee (CENAPECO); Jhon Plaza Garay, General-Secretary of the National Enterprise Committee (CETAPE) and Diego Cano Molestina, President of FETRAPEC. This arbitrary act by the employing authority, apart from depriving them of the right to work and stability guaranteed by collective agreement, affects the trade unions they represent in two ways: first, because it is an assault on the right to organize, specifically the right of workers freely to elect their representatives, and, secondly, because it seeks, by stealth, to destabilize and frighten organized workers. (Enterprise committees are “trade union organizations” in Ecuador.)
41. 762. In its communication of 22 December 2008, PSI, on behalf of the National Federation of Provincial Council Workers of Ecuador (FENOCOPRE) and the Federation of Free Municipal Workers of Ecuador (FETRALME), organizations affiliated to PSI in Ecuador, submitted a complaint against the Government of Ecuador for violation of ILO Conventions Nos 87 and 98, ratified by the Ecuadorian State, and submits for examination by the Committee on Freedom of Association, the text of the following provisions:
42. – Constituent Resolution No. 002;
43. – Constituent Resolution No. 004;
44. – Constituent Resolution No. 008;
45. – Regulations on the application of Constituent Resolution No. 008;
46. – Ministerial Order No. 00080;
47. – Ministerial Order No. 00155A (automatic adjustment clause).
48. 763. The PSI states that its complaint is also in support of the complaints on these matters by the National Coordinating Body of Ecuadorian Public Sector Trade Unions, which was created to present a united front in the complex process currently faced by labour in Ecuador. The organizations are: the Andinatel Workers Enterprise Committee; the Cementos Guapán Workers Enterprise Committee; the Cementos Chimborazo Workers Enterprise Committee; the EMAAP-Q Workers Enterprise Committee; FETRALME; FENOCOPRE; the Federation of University and Polytechnic Workers’ Unions; FETRAPEC; the Federation of Municipal and Provincial Workers; OSUNTRAMSA; and the Single Workers’ Union of the Institute of Social Security (IESS).
49. 764. The PSI points out that the actions taken by the Government of Ecuador endanger the right to organize and collective bargaining in the public sector, marking a backward step in the guarantee of fundamental rights at work, for which reason the Committee is requested to examine the complaint in order to restore the full exercise of freedom of association in the Ecuadorian public sector, and to treat this case as a matter of urgency as the Ecuadorian Government is threatening the existence of the entire trade union movement in the public sector of Ecuador.
50. 765. In its communication of 24 February 2009, OSUNTRAMSA states that its complaint contains the same concerns as presented by FETRAPEC and PSI in relation to the legal texts to which those organizations object. It also reproduces a considerable part of the text of the complaint by FETRAPEC.
51. 766. OSUNTRAMSA indicates that the collective agreement concluded with the Ministry of Public Health did not contain any “privilege” clause of a kind mentioned in Constituent Resolution No. 008. Despite this, the Ministry of Labour declared some clauses void and curtailed or diminished others when unilaterally revising the collective agreement.
52. 767. OSUNTRAMSA states that, due to the dependent relationship of its members with the Ministry of Public Health, we should emphasize that essentially our work or service is, to a large extent, care in healthcare units at various levels (health centres, general hospitals, specialist hospitals), i.e. in work aimed at preventive healthcare and permanent and continued treatment of patients, a humanitarian activity in itself but not without risk, contingency or proximity to injury. However, perhaps the greatest risk is stress, increased during emergencies, surgical operations and post-operative care and other critical areas. In consideration of that, the ILO itself, some decades ago, adopted specific conventions on work with ionizing radiation and nursing, with specific regulations to be observed by States, taking into account the peculiarities and risks of such activities. Thus, Convention No. 115 concerning the protection of workers against ionizing radiation, in general, is designed to safeguard the health of exposed workers, and it is not hard to see that the least exposure is a reflection of working time. Convention No. 149 concerning employment and conditions of work and life of nursing personnel, in article 1, states that the term “nursing personnel” includes all categories of persons providing nursing care and nursing services. The Convention applies to all nursing personnel, wherever they work. In Article 2, paragraphs 2(a) and (b) it is stated that the State shall take the necessary measures to provide nursing personnel with education and training appropriate to the exercise of their functions; and employment and working conditions, including career prospects and remuneration, which are likely to attract persons to the profession and retain them in it. Article 6 provides, verbatim, that “Nursing personnel shall enjoy conditions at least equivalent to those of other workers in the country concerned in the following fields: (a) hours of work, including regulation and compensation of overtime, inconvenient hours and shift work; (b) weekly rest; (c) paid annual holidays; (d) educational leave; (e) maternity leave; (f) sick leave; (g) social security”; and Article 8, likewise: “The provisions of this Convention, in so far as they are not otherwise made effective by means of collective agreements, works rules, arbitration awards, court decisions, or in such other manner consistent with national practice as may be appropriate under national conditions, shall be given effect by national laws or regulations”.
53. 768. Conventions Nos 115 and 149 are international instruments signed and ratified by Ecuador. However, in the impugned revision order for the revision of the ninth collective agreement of the Ministry of Public Health, a unilateral revision carried out by the Ministry of Labour and Employment, clause 27 (working hours and working days) of the collective agreement and the application order of that clause signed by the parties on 18 September 2007 is declared void, in violation of the aforementioned international conventions.
54. 769. Similarly, by way of example, the bonus when workers take the employer’s pension to which they are entitled, as set out in clause 14 of the collective agreement, is abolished. That clause stipulates that where a worker takes the employer’s pension or the IESS pension, the Ministry of Public Health will pay a bonus equivalent to 30 months of standard monthly remuneration.
55. 770. In trade union matters, there is now no paid trade union leave as agreed in clause 31 of the collective agreement. This is clear evidence of the restriction of freedom of association and restrictive interference in the exercise of that right.
56. B. The Government’s replies
57. 771. In its communications of 9 January and 16 February 2009, the Government states that by a national popular referendum on 15 April 2007, the Ecuadorian people approved the convocation of the Constituent Assembly. On 30 September 2007, Ecuadorians elected 130 representatives to form the Constituent Assembly. Article 22 of the “Statute on the election, installation and functioning of the Constituent Assembly” provides that it shall be installed ten days after the date of proclamation of the final election results. The Constituent Assembly assumed the constituent power invested with full powers, and exercised it by the issue of resolutions, laws, decisions and resolutions. The Constituent Assembly is the legitimate representative of the sovereign will of the people, and thus, on its behalf and in representation thereof, it embarked on the legal reform which is described below.
58. 772. The Government refers first to Constituent Resolution No. 008 of 30 April 2008, published in the Supplement to Official Journal No. 330 of 6 May 2008 and its regulations in application contained in Executive Decree No. 1121, published in the Supplement to Official Journal No. 353 of 5 June 2008.
59. 773. This resolution abolished and prohibited the outsourcing of supplementary services, employment agencies, hourly contracting of labour and provided for the automatic adjustment of collective agreements in the public sector to the provisions of the Constituent Resolutions, and the revision of those collective agreements by the Ministry of Labour and Employment, with the participation of employers and workers, with clear restrictions on all clauses containing excesses and privileges.
60. 774. The revision of collective agreements in the public sector was an aspiration and desire of large sections of the Ecuadorian population for many years, and the Constituent Assembly was formed from co-opted assembly members who tackled this problem with great integrity and seriousness, of course in harmony and accord with the policies and principles of the National Government under the Presidency of economist Rafael Correa Delgado. The response of the public at large has been total approval and acceptance of the revision process being undertaken by the Ministry of Labour and Employment.
61. 775. The legal basis of the process of revision of collective bargaining in the public sector is as follows: article 3 of Constituent Order No. 001 of 29 November 2008, states: “dignitaries, authorities, officials and civil servants in general who by commission or omission fail to comply with decisions adopted by the Constituent Assembly shall be subject to sanction, including dismissal, without prejudice to any criminal, civil and administrative responsibility”. The Rules of Procedure of the Constituent Assembly, published in the supplement to the Official Journal, No. 236 of 20 December 2007, state in article 2 that: “Decisions: In the exercise of its powers, the Constituent Assembly shall approve: ... 2. Constituent Resolutions: decisions and laws issued by the Constituent Assembly for the exercise of its full powers ...”. Article 3 continues: “Supremacy of decision of the Constituent Assembly: No decision of the Constituent Assembly shall be subject to review or challenge by any of the constituted powers ... All public authorities are obliged to comply therewith on pain of constraining measures or dismissal”.
62. 776. From the laws cited above, it can be seen that officials and public servants are under a moral and legal obligation to comply with decisions adopted by the Constituent Assembly.
63. 777. The third transitional provision of Constituent Resolution No. 008 provides:
64. Clauses of collective agreements which are in force and which were signed by public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, shall be automatically adjusted to the provisions of the Constituent Resolutions and regulations issued by the Ministry of Labour and Employment within a period of 180 days. Collective agreements to which this transitional provision refers shall not protect those persons who exercise management, executive and representative and managerial duties generally, or staff who by the nature of their functions or work are subject to public order acts, especially the Organic Act on the Civil Service and Administrative Profession, Approval and Unification of Public Sector Remuneration. The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly and shall establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to trade union officials, payment of holidays and recognition of other benefits for the worker’s family group, additional gratuities and bonuses for voluntary retirement, free supply of the company’s goods and services, among other clauses of that kind. Clauses of collective agreements which are not adjusted to the parameters to which this transitional provision refers and which contain unreasonable and excessive privileges and benefits which run counter to the general interest are void in law. Judges, courts and administrative authorities shall enforce this provision.
65. 778. Transitional provision five of Resolution No. 008 provides that: “This Constituent Resolution shall be regulated by the President of the Republic”. The regulations for the application of Constituent Resolution No. 008, which abolishes the outsourcing of supplementary services, employment agencies and hourly contracting, in transitional provision three, paragraphs four and five states:
66. The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly within 180 days from the date of entry into force of Constituent Resolution No. 008, and shall establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to workers and trade union officials, compensation for change or substitution of employer, contributions by the entity or company to extra-statutory or private pension funds, payment of holidays and recognition of other excessive benefits for the worker’s family group, additional gratuities and bonuses for voluntary retirement, free supply of the company’s goods and services, payment of holidays and the thirteenth and fourteenth month remuneration in amounts greater than those laid down by law, contributions by the entity or company to trade union activities, holidays additional to public holidays established by law, among other clauses of that kind. The Minister of Labour and Employment shall issue regulations and procedures for the revision of the collective agreements concerned. The highest authorities in the various public and private sector institutions charged with applying this provision shall be personally liable in civil law for their application.
67. 779. From the provisions transcribed, both Resolution No. 008 and the regulations in application clearly and unequivocally show that the list of clauses which are considered to contain excesses and privileges is only indicative and not exhaustive, as indicated by the expressions “such as” and “among other clauses of that kind”, thus the clauses indicated as an example by the Constituent Assembly itself and the President of the Republic as void in law, are guidelines and examples which we were obliged to follow in the process of revision to determine other clauses which also contained excesses and privileges and were contrary to the general interest and which must also be included in the category of void in law.
68. 780. Executive Decree No. 1396 of 16 October 2008, amending Executive Decree No. 1121, states in its single article:
69. In paragraph three of transitional provision three of the Regulations for the application of Constituent Resolution No. 008 which abolishes and prohibits the outsourcing of supplementary services, employment agencies, hourly contracting of labour, ... replace the phrase “within 180 days” by the phrase “within one year”.
70. 781. In Ministry of Labour and Employment Orders Nos 00080 of 8 July 2008 and 00155A of 2 October of that year, issued strictly in compliance with, and in application of Constituent Resolution No. 008 and its regulations, set out the regulations and rules for the process of adjustment and revision of collective agreements in the public sector.
71. 782. Decisions of the Constituent Assembly are hierarchically superior to any other legal rule, including the Constitution, i.e. they have a supra-constitutional hierarchy and supremacy which remains over time, even with the new Constitution, given that its resolutions must be complied with beyond the period in which the Constituent Power functioned, as occurs, for example, with regulations on maximum remuneration and compensation in Resolutions Nos 002 and 004, and, of course, those set out in Resolution No. 008 on supplementary activities, civil contracting of specialist services, part-time work for those who were working on hourly contracts and teachers in private establishments, time limits under the resolution and regulations which continue beyond the entry into force of the new Constitution, such as the one granted to the President of the Republic (one year) to implement a process of social dialogue in order to establish the principles governing collective bargaining in the public sector.
72. 783. Officials of the Ministry of Labour and Employment who make up the commission on the revision of collective agreements in the public sector are obliged, as they have been doing, to comply with the decisions of the Constituent Assembly, on pain of being subject to sanction, including dismissal, without prejudice to any criminal, civil and administrative responsibility as applicable, as set out in Constituent Resolution No. 001 and the Rules of Procedure of the Assembly.
73. 784. Constituent Resolution No. 008 of 30 April 2008, in its transitional provision three, orders that clauses of collective agreements which are in force and which were signed by public sector institutions, public state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources shall be automatically adjusted to the provisions of the Constituent Resolutions and regulations issued by the Ministry of Labour and Employment within a period of 180 days, at the same time providing for a process of revision of those collective agreements which “establish clear restrictions on all clauses which contain excesses and privileges”.
74. 785. The last two sentences of this provision prescribe that: “clauses of collective agreements which are not adjusted to the parameters to which this transitional provision refers and which contain unreasonable and excessive privileges and benefits which run counter to the general interest are void in law” and that “judges, courts and administrative authorities shall enforce this provision”.
75. 786. For its part, final provision three states: “compliance with this resolution is mandatory and therefore it shall not be open to complaint, challenge, action for protection (amparo), demand, claim, or any administrative or judicial opinion or judgement”.
76. 787. Transitional provision five of Resolution No. 008 empowers the President of the Republic to issue, within sixty days, the regulations for its application, and this was done by Executive Decree No. 1121, published in the supplement to the Official Journal, No. 353 of 5 June 2008, transitional provision three of which provides: “The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly within 180 days from the date of entry into force of Constituent Resolution No. 008, …”. This time limit was extended by Executive Decree No. 1396 of 16 October 2008, the single article of which states: “In paragraph three of transitional provision three of the regulations for the application of Constituent Resolution No. 008 which abolishes and prohibits the outsourcing of supplementary services, employment agencies, hourly contracting of labour, ... replace the phrase ‘within 180 days’ by the phrase ‘within one year’”.
77. 788. The Government clarifies that the regulations and rules of procedure were issued by the Ministry of Labour and Employment, in Order No. 00080 of 8 July 2008 and Order No. 00155A of 2 October of the same year.
78. 789. Article 1 of Order No. 00080 provides that the direction and coordination of the process of automatic adjustment and revision of the clauses of collective agreements to which transitional provision three of Constituent Resolution No. 008 and its regulations for application refer, will be the responsibility of commissions made up of officials of the Ministry of Labour, chaired by the undersecretary of Labour and Employment of Sierra and Amazonia for the Sierra and Amazonia region and by the undersecretary of Labour and Employment for the Coast and Galápagos region.
79. 790. It should be emphasized that the revising commission of the Ministry of Labour and Employment has respected the parameters of fair remuneration and the principle of stability of employment.
80. 791. In short, the revising commission has acted in accordance with Constituent Resolutions Nos 001 and 008 and its regulations for application, respecting constitutional provisions concerning the right of freedom to contract through the participation of the parties, as set out in Ministerial Orders Nos 00080 and 00155A of 8 July and 2 October 2008. This, indeed, is shown by the presence and participation of representatives of workers, employers and the State, through the revising commission, in public hearings, the said commission being obliged to give precedence in its decisions to the general interest over the particular in promoting the common good, as set out in article 83, paragraph 7, of the current Constitution.
81. 792. It has been shown that there is no violation of constitutional or legal rights and thus the revision of collective agreements in the public sector will continue in accordance with the provisions of transitional provision three of Constituent Resolution No. 008 and its regulations for application and Ministerial Orders Nos 00080 and 00155A.
82. 793. In addition, the Plenary of the Legislative and Control Commission issued the Organic Act to amend Constituent Resolution No. 002, published in the Official Journal of 29 January 2009, where the legislative and executive functions jointly state that the Constituent Resolutions have the category of organic laws, since the single general provision of this organic amending Act states, verbatim:
83. Resolutions issued by the Constituent Assembly are in full force, and their amendment shall require the procedure set out in the Constitution of the Republic for organic laws.
84. 794. From the point of view of constitutional law, it should be emphasized that there is no legal possibility of derogating from Constituent Resolutions, since the Constituent Assembly, with full powers, in issuing these constituent acts, and especially Resolution No. 008, drew a clear distinction between the other laws and resolutions which it issued. In other words, it gave the Constituent Resolutions a constitutional legal category of a special character which did not admit a claim for unconstitutionality of a Constituent Resolution which had been ratified by the commission on reception and qualification of the former Constitutional Tribunal, now the Constitutional Court, signed under number 0043-07-TC of 4 January 2008. The commission of the highest constitutional organ of the Ecuadorian State, by so pronouncing, argued in law that it was not admissible to hear a claim of unconstitutionality of the resolutions. Thus, their legal category has the special characteristic of supra-constitutionality because the Constituent National Assembly, with full powers, assumed the powers of the various functions contemplated in the legal system of the Ecuadorian State as a product of the referendum which approved it.
85. 795. The corollary of this legal analysis of the constitutional basis is that the National Assembly alone, in the exercise of its powers enshrined in the current Constitution, has the power to amend resolutions issued by itself, in the exercise of its full constituted powers. This confirms, without a shadow of a doubt, that Constituent Resolution No. 008, which legislated and regulated the process of revision of collective bargaining in the public sector, is fully in force and does not violate any constitutional or legal provision of the current legal system of the Ecuadorian State, and all and each of the provisions on the subject are applicable.
86. 796. The Government summarizes below the result of the process of revision of the collective agreement to date.
87. 797. The state enterprise Petroecuador and its subsidiaries Petroproducción, Petroindustrial and Petrocomercial, concluded collective agreements with their respective workers’ organizations. Basically, these collective agreements have the same structure and are similar concerning the claims and obligations of the workers. The commission on the revision of public sector collective agreements carried out a detailed analysis of these four agreements, in a process which was hardly attended by the workers’ delegates who walked out of the relevant meetings with the intention of boycotting the revision.
88. 798. Against this background, and in application of the provisions of paragraph 17 of Ministerial Order No. 00155A, which contains rules of procedure for the revision of collective agreements in the public sector, the walkout was noted in the respective minutes and the process continued and was completed with the presence of the employers’ side.
89. 799. As a matter of policy of this Ministry, clauses referring to guarantees of stability and fair and unified remuneration were not amended.
90. 800. Against this background, the revision of those collective agreements continued, and the following clauses warranted special attention due to their content:
91. – Compensation for change of employer. In the case of transfer, disposal or sale, by any means, of the companies of Petroecuador, they must compensate the worker with large sums, whether or not they go on to work in the new companies, for which reason it was declared void in law.
92. – Contribution for voluntary separation. Whereby workers who voluntarily separated from the company received large contributions ranging from US$150,000 to US$600,000, which was public knowledge, for which it was declared void in law, pursuant to Resolution No. 008. Furthermore, it was the Constituent Assembly itself which found itself obliged to limit the amount of such benefits, with the issue of Constituent Resolution No. 002, which set a maximum of 210 times the standard minimum basic wage of private workers (US$42,000) in the case where the separation was to take a retirement pension.
93. – Special employer’s pension. Provides that it is compulsory for all workers of Petroecuador and its subsidiaries and will protect them for old age, disability and death, by means of a pension separate from that established by the IESS. Payment of the special employer’s pension under article 219 and following of the Labour Code is assumed as an obligation of the special employer’s pension fund of each subsidiary, in accordance with their respective statutes and regulations. For that purpose, the company and the workers undertake to contribute 8.37 per cent of their basic salary monthly to the special employer’s pension fund. This clause, had it been allowed to remain in force, would have allowed Petroecuador and its subsidiaries to allocate monthly actuarial reserves to a future and uncertain event, since the employer’s pension of workers in the state petroleum company is subject to fulfilment of a condition under the Labour Code. This condition is that they must have completed 25 years service and left the company. Furthermore, State resources were contributed to a private employer’s pension fund, which is in violation of the legal order of the State, and thus in breach of Constituent Resolution No. 008 and its regulations for application. The decision adopted by the commission to abolish this employer’s contribution is fully concordant with the decision of the Constitutional President of the Republic in issuing Executive Decree No. 1406 of 24 October 2008, which provides that State resources must not be contributed to such funds of a private nature with effect from 1 January 2009. The commission made it clear that the workers could continue to contribute voluntarily to that fund.
94. – Pension contribution. This clause stated that “For those workers who join the IESS pension scheme and/or the special employer’s pension scheme regulated by the rules of the Petroecuador and subsidiaries pension fund, the company will grant a contribution equivalent to 30 times the worker’s remuneration which will be paid directly to him when he retires. This benefit is an entitlement to workers who have worked for at least ten years continuously in Petroecuador or its subsidiaries. The grant of this benefit excludes the payment of the contribution for voluntary separation in clause 14 of this agreement”. To maintain harmony with Constituent Resolution No. 002, the text of this clause was replaced by the following: “For those workers who join the IESS pension scheme, the company will grant a contribution equivalent to 30 times the worker’s remuneration which will be paid direct to him when he retires and which in no case may exceed the maximum amount established in paragraph two of article 8 of Constituent Resolution No. 002”.
95. – Trade union leave and company contributions to trade union organizations. Whereby the company undertook to grant the following paid trade union leave: 80 days of leave per month to the recognized trade union organization, but not more than eight consecutive days per month for each official. The company granted officials or delegates travelling to places other than their normal place of work, while on trade union leave, a payment of US$25 per day and US$20 per day where the company provided transport. In the case of institutional assignments, the company granted significant economic assistance to trade unions. In the light of this situation, the commission decided that trade union leave with pay could be granted for up to ten days per month, solely to principal trade union officials and declared void in law the contributions to trade unions, in accordance with transitional provision three of the regulations under Resolution No. 008.
96. – Excessive and unjustified payments for shift work, length of service, social welfare benefits and expenses for ophthalmic and dental treatment. Abolished as void in law because they involved unjustified increases which, in several cases, amounted in less than eight years to 1,000 per cent, while the wage increase was only 40 per cent over eight years.
97. – Christmas bonuses and long-service incentives to the worker. These were abolished as they contravened Constituent Resolution No. 008, since they included payment in cash, meals and travel of families with all expenses paid, in the first case, and in the second, cash payments up to US$2,000 and gold rings for years of service.
98. – Feast Days. Feast days not recognized as such in the Labour Code were abolished, which resulted in significant cost savings, by avoiding the payment of replacements, substitutions and overtime, and achieving improved labour productivity.
99. 801. For all the above reasons, it must be concluded that the revision of the collective agreements is supported by Constituent Resolution No. 008 for the regulation of agreements which contain excesses, privileges and arbitrary provisions which conflict with the general interest. It is clear that the properly acquired rights of workers, especially those relating to stability and remuneration, are absolutely respected in this revision. Not so the special contributions to trade unions, and unreasonable gratuities and benefits other than remuneration. The resolution contains the mandatory provision that such clauses which contain excesses are void in law.
100. 802. According to the Government, everything was analysed through healthy criticism in the revising commission with the participation of employers and workers. The resolution granted the Minister of Labour the powers to implement the regulation concerned and, if some of the parties chose to absent themselves, the revision had to continue.
101. 803. This shows the transparency of the action of the national Government concerning the matter which is the subject of complaint presented by the President of FETRAPEC. It should further be pointed out that the international principles on freedom of association and the right of collective bargaining contained in Conventions Nos 87 and 98 of the ILO were respected.
102. 804. In conclusion, in accordance with the legislation of the ILO itself and the abovementioned international conventions, the Government also recalls that collective bargaining in the public sector is subject to the existence of economic resources which can finance it and the specific case of the collective agreements of Petroecuador, maintaining the inaptly named “labour gains” would have resulted in its liquidation, to the detriment of 13 million Ecuadorians.
103. 805. In its communication of 19 March 2009, the Government refers to the complaints of FETRAPEC relating to dismissals.
104. 806. The Government states that under no circumstances can the Government and, ultimately, the Ministry of Labour and Employment, accept the views expressed by Mr Diego Cano Molestina, who acts as President of the National Federation of Petroecuador Workers despite the fact that he no longer works for Petroecuador or any of its subsidiaries. He therefore lacks any legal representative status to act and make assertions that are far from the truth, on alleged new acts in violation of freedom of association and the right to collective bargaining by the Ecuadorian State against public sector workers, especially those in Petroecuador.
105. 807. The Government adds that by reproducing the assertions of the “alleged” trade union official who, as indicated above, no longer workers in Petroecuador or its subsidiaries, it is sought to draw attention to the fact that he assumes a legal status which he no longer possesses, in formulating a complaint of this nature, asserting the alleged existence of acts which affect freedom of association and collective bargaining of all unionized workers in the public sector.
106. 808. The Government confirms that Mr Cano has not, and has made no attempt to, send documentary evidence of his accreditation in due legal form that he is representative of all unionized workers in the public sector subject to public employment, for which reason his complaint accompanied by the signature of other alleged trade union officials is absolutely null and void.
107. 809. With regard to the alleged violations against the workers of Petroecuador and its subsidiaries, which referred to the unfair dismissal of trade union officials, specifically the cases of: Edgar de la Cueva, Ramiro Guerrero, Jhon Plaza and Diego Cano, the Government states that at no time did the complainants bring to their knowledge the appointments that accredit them as trade union officials. Thus, as they did not provide evidence of that legal status, from no standpoint can the Government of Ecuador, or the Ministry of Labour and Employment, accept this complaint.
108. 810. Furthermore, we request you to declare this complaint as undue, illegal and not receivable, in accordance with the rules applied by the ILO for the purpose of qualifying and applying the procedure for substantiation, since it does not satisfy the requirements of the case and, in particular, is not supported by a national federation of Ecuadorian workers duly constituted and registered in accordance with the constitutional and legal provisions which allow such recognition. Thus, this new complaint suffers from errors as to substance and form because the complainants lack representative status, as they have not proved that legal condition with the respective documentary accreditation, and are not supported by any workers’ representation of a national character recognized by the Ecuadorian State.
109. 811. On the assumption, which is not accepted, that the complainants could prove their condition of “trade union officials” and also had the support of a national federation of workers legally recognized by the Government of Ecuador, the Government declares that the termination of its employment relations is not an arbitrary act by the management of the State enterprise (Petroecuador) and its subsidiaries, since it is supported in law by the constitutional principle of freedom to contract, set out in paragraph 18 of article 23 of the Political Constitution of the State, in force at the time when the management decisions were taken fully in accord with article 188 of the Labour Code.
110. 812. The Political Constitution of the State (1998), in “Chapter II, Civil Rights, article 23 provides that: Without prejudice to the rights established in this Constitution and applicable international instruments, the State shall recognize and guarantee to persons the following: ... 18. Freedom to contract, subject to the law”. The Labour Code, for its part, provides:
111. Compensation for unfair dismissal. The employer who unfairly dismisses a worker shall be ordered to compensate him, in accordance with his length of service and applying the following scale:
112. Up to three years service, the equivalent of three months remuneration, and,
113. Over three years, the equivalent of one month’s remuneration for each year of service, which in no case shall exceed 25 months’ remuneration.
114. A fraction of a year shall be considered a whole year.
115. This compensation shall be calculated on the basis of the remuneration which the worker would have received at the time of dismissal, without prejudice to payment of the bonuses to which in this case article 185 of the Code refers.
116. In the case of piecework, the monthly remuneration shall be fixed on the basis of the average received by the worker in the year preceding his dismissal, or during the time he has worked if less than one year.
117. In the case of a worker who has completed 20 years and less than 25 years service, continuously and without interruption, he will additionally be entitled to a proportion of the employer’s pension, in accordance with the provisions of this Code.
118. The compensation for dismissal set out in this article may be enhanced by mutual agreement between the parties but not by conciliation and arbitration tribunals.
119. When the employer gives written notice of his intention to terminate unilaterally an individual contract of employment, i.e., unfairly, the labour authority which is apprised of the dismissal, shall summon the employer to appear and, if he confirms the dismissal, he must deposit within 48 hours the total amount of compensation due to the dismissed worker.
120. If the employer at the indicated hearing does not confirm the dismissal contained in the relevant notice, alleging that the letter containing the dismissal was not written by him or by representatives of the company authorized to terminate labour relations, an order shall be made for the immediate reinstatement of the worker in his job.
121. 813. The Government further indicates, having adopted this management decision and in compliance with the legal order in effect in Ecuador, the labour rights of the presumed trade union officials were respected in full, since on termination of their employment relationship with the company through the various subsidiaries, they were paid all the amounts to which they were entitled including the benefits of the collective agreement and all the compensation legally due to them.
122. 814. The compensation legally due to them and the monies already received were paid in accordance with Constituent Resolutions Nos 002 and 004 issued by the Constituent Assembly with full powers, being supra-constitutional acts, thus their legal effects persist in time and continue to apply up to the present, pursuant to the provisions of Resolution No. 0023 of the Commission on Legislation and Control of the National Assembly, published in the Official Journal, No. 458 of 31 October 2008, i.e. they enjoy the status of organic laws and thus any derogation or amendment is the exclusive prerogative of the National Assembly which exercises the legislative power of the Ecuadorian State.
123. 815. The decision adopted by Petroecuador and its subsidiaries to terminate the relations with the alleged trade union officials was not only based on constitutional and legal provisions, but also involved the application of clause fifteen of the collective agreement in force applicable to the cases mentioned in subparagraphs (e) and (f) of article 19 of the regulations substituting the general regulations under the Special Act concerning Petroecuador and its subsidiaries. Article 18 of these regulations provides that the powers and responsibilities of executives of the various subsidiaries of Petroecuador include the management and safeguarding of the interests of the subsidiary, to evaluate the management performance of their institution and its employees, all in relation to the activities specific to the fields of professional activity.
124. 816. Considering the rule invoked, this regulation empowers the employer and the worker to terminate the employment relationship at any time, unilaterally, and in the cases concerned here, the company having taken its decision, paid all the compensation determined by the Labour Code and the collective agreement in strict compliance with the provisions of article 188 of the Labour Code.
125. 817. The decision taken by Petroecuador and its subsidiaries to terminate the employment of the complainants, who had not provided evidence of their status as trade union officials, are not unlawful acts of the various vice-presidents of the subsidiaries of Petroecuador, since each of them is the competent authority exercising legal representation thereof, as set out in their appointments (attached hereto) for which reason they are acts which derive from contracts of employment, thereby observing the legal order established in the collective agreement in each of the subsidiaries, namely: Petroproducción, Petrocomercial, Petroindustrial and Petroecuador.
126. 818. Likewise, the management decisions adopted by Petroecuador, through the legal actions of the vice-presidents of the subsidiaries of which they are the legal representative, are not acts contrary to the Political Constitution of the Ecuadorian State, collective agreement, the Labour Code, or, which would be worse, the conventions signed by the Government of Ecuador with the ILO, as alleged by the complainants.
127. 819. The assertion in the previous paragraph was confirmed by the Constitutional Judge in the Tenth Civil Court of Pichincha, Dr José Martínez Naranjo, who in a judgement dated 21 August 2008 (documentation for which is attached) decided to reject the appeal for constitutional protection filed by one of the presumed dismissed trade union officials, Mr Edgar Ramiro de la Cueva Yánez.
128. 820. In conclusion, the Ecuadorian Government and the Ministry of Labour did not violate the labour rights of the complainants, for which reason in setting out the due observations in this document, the Government is quite certain that the ILO, through the Committee on Freedom of Association, will reject them and archive them.
129. 821. Finally, the Government of Ecuador, through the Secretariat of State, reserves the legitimate right prior to the legal analysis of the case, to submit a request to the Governing Body of the ILO for violation of the rules contemplated in Conventions Nos 87 and 98, since it will not escape your notice that the clauses contained in the collective agreements of the State Petroleum Company and its subsidiaries violated the basic principles of the concept of collective bargaining set out in those legal instruments, as well recognized by the complainants, is determined. This is determined by article 4, which states verbatim “in consequence if article 4 of Convention No. 98 on collective bargaining only has the object of regulating conditions of employment”. The Government refers to the excesses of that contract of employment detailed in its two previous communications.

C. The Committee’s conclusions

1. 822. The Committee observes that the complainant organizations (FETRAPEC, PSI and OSUNTRAMSA) allege, on the one hand, the arbitrary and unfair dismissal of four trade union officials in the petroleum sector (Messrs Edgar de la Cueva, Ramiro Guerrero, Jhon Plaza Garay and Diego Cano Molestina) and, on the other, the issue of “Constituent Resolutions” and legal instruments derived therefrom which gave rise to various limitations on collective bargaining and the declaration of nullity or unilateral amendment by the authorities of clauses of collective agreements in the public sector through procedures in which the trade unions were merely heard and in which the administrative authority decided without any possibility of administrative or judicial appeal.
2. 823. The Committee observes that the Government objects to the receivability of the complaint presented by FETRAPEC on the basis that: (1) the complainants – the five signatories of the complaint by FETRAPEC – did not submit evidence of the appointments accrediting them as trade union officials; (2) Mr Diego Cano Molestina who, according to the complaint, acts as President of the National Federation of Petroecuador Workers, no longer works for the Petroecuador company; (3) this person has not shown that he is a representative of all the unionized workers in the public sector, for which reason his complaint accompanied by the signature of the other three supposed trade union officials is null and void; (4) the complaint is not supported by a national federation of Ecuadorian workers constituted and registered pursuant to the constitutional and legal provisions that allow such registration; (5) the termination of the employment relations of the four supposed trade union officials is not arbitrary because it is supported in law in the constitutional principle of freedom to contract and it was in accordance with the Labour Code, the collective agreement and the General Regulations pursuant to the Special Act concerning Petroecuador and its subsidiaries, from which it can be concluded that at any time the employment relation may be terminated unilaterally, and all the legal compensation due to those four persons had been paid; (6) those regulations attribute to the Petroecuador company responsibility for the management and safeguarding of the interests of the subsidiary, to evaluate the management performance of their institution and its employees, all in relation to the activities specific to the fields of professional activity; and (7) the court refused the appeal for constitutional protection filed by one of the alleged trade union officials, Mr Edgar de la Cueva (the Government attaches the judgement).
3. 824. The Committee wishes to point out that in any case the question of receivability of FETRAPEC’s complaint has been overtaken by events with regard to the allegations relating to the Constituent Resolutions and the legal instruments derived from them, since the other complainant organizations (PSI and OSUNTRAMSA) support FETRAPEC’s complaint or explicitly express the same concerns and ask the Committee to pronounce on the texts in question.
4. 825. As regards the question of the receivability of FETRAPEC’s complaint concerning the dismissal of four (alleged according to the Government) trade union officials, the Committee observes that in the judgement sent by the Government on the application for protection (amparo) filed by one of those persons (Mr Edgar de la Cueva, one of the signatories of the complaint to the Committee) with respect to his unfair dismissal, his status of trade union official is mentioned on several occasions without the defendant, the Petroproducción company, denying or objecting to it. Furthermore, the application mentions anti-trade union reprisals as a consequence of a press release in the name and representation of the trade union organization establishing guidelines for the definition of petroleum policy and complaints against the Ministry of Mines and Petroleum. The application was refused for reasons of form (failure previously to exhaust the ordinary legal remedies). Nevertheless, given that the Government has raised the question of the receivability of the complaint, making it subject to evidence of the status of trade union official of the signatories of the complaint (four of them dismissed), the Committee requests FETRAPEC to confirm the status of trade union official of the signatories of the complaint, including the dismissed persons, for example, by sending the minutes of the general meeting in which they were elected by their trade union organization, grass-roots union or federation. In turn, the Committee requests the Government to indicate: (1) whether the consideration that the four dismissed persons were not trade union officials was related to their dismissal, which might have made them lose that status under Ecuadorian legislation, and (2) the “specific facts” which motivated the dismissal of those four persons, as it would appear from the Government’s reply that they were dismissed unilaterally and without any indication of the grounds. The Committee also requests the Government to communicate the sanctions set out in the legislation in the case of arbitrary and unjustified dismissals of trade unionists. The Committee recalls paragraph 33 of its procedures, whereby the Committee has not regarded any complaint as being irreceivable simply because the government in question had dissolved, or proposed to dissolve, the organization on behalf of which the complaint was made, or because the person or persons making the complaint had taken refuge abroad.
5. 826. Returning to the question of the Constituent Resolutions and the legal instruments derived from them, to which the complainant organizations object, in that they allege they declare the nullity or impose amendments of clauses of collective agreements in force in the public sector through procedures in which the complainant organizations are merely “heard” and in which decisions are taken by the administrative authority without the possibility of any administrative or legal appeal, the Committee indicates that the relevant provisions of the texts in question, attached by the complainant organizations and the Government, are reproduced in the annex to the present report.
6. 827. The Committee notes the Government’s statements according to which: (1) the revision of the collective agreements in the public sector, which contained excesses and privileges, was an aspiration and desire of large sections of the population and the response of the public at large was total approval and acceptance of the revision process being undertaken by the Ministry of Labour and Employment in relation to clauses which contain unreasonable and excessive privileges which conflicted with the general interest; the Government gives specific examples relating to collective agreements in the petroleum sector, amply described in its reply, for example, the voluntary separation of the worker in the Petroecuador company gave rise to contributions ranging from US$150,000 to US$600,000; (2) these clauses (of the nature indicated in Constituent Resolution No. 008 and its regulations for application) are merely indicative; (3) the Constituent Resolutions have a supra-constitutional character and may not be derogated or the subject of claims of unconstitutionality in the Constitutional Court; (4) collective bargaining in the public sector is subject to the existence of the economic resources to finance it and, had the collective agreements of Petroecuador been maintained, that would have led to its liquidation to the detriment of 13 million Ecuadorians; and (5) the reforms concerned were carried out in full respect for the legal order.
7. 828. The Committee observes that the complainant organization FETRAPEC does not deny that there may be excesses and considers it essential that there will be legislation to ensure that in the future certain “excesses” of “abuses” are avoided, but questions whether the amendments have been in accordance with normal and rational practice, i.e. through collective bargaining, and that resort was made instead to the subjective and arbitrary government authority through public officials. The Committee observes that the complainant organization emphasizes that nowhere in Constituent Resolution No. 008 does it state that the revising commission (of collective agreements) is composed solely of officials of the Ministry of Labour and Employment. That was defined, emphasizes FETRAPEC, by the Ministry of Labour and Employment in Ministerial Order No. 00080, which grants discretionary powers to that commission and excludes any administrative or judicial appeal; the “contributions” of workers’ organizations and the employer, according to that order, will be appraised by the commission applying the principle of “healthy criticism”.
8. 829. To the extent that this case involves legal instruments (Constituent Resolutions, regulations, ministerial orders) which affect conditions of work, the Committee wishes to emphasize the importance of prior consultation of employers’ and workers’ organizations before the adoption of any legislation in the field of labour law [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 1073]. The Committee highlights that it is important that consultations take place in good faith, confidence and mutual respect, and that the parties have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise [see Digest, op. cit., fifth edition, 2006, para. 1071]. In the present case, nothing indicates either the Government’s statements or the content of the legal texts to which the complainants object, that in-depth consultations were held in advance and allowing sufficient time with the workers’ organizations concerned (which deplore the unilateral nature of the legal instruments in question) and for that reason, the Committee requests the Government in future to take into account the aforementioned principles in order, as far as possible, to reach shared solutions.
9. 830. As regards the provisions in the Constituent Resolutions which set a cap on remuneration in the public sector (No. 002), compensation for unfair dismissal and other causes of termination of the employment relation (No. 002 and No. 004) or prohibit supplementary private pension schemes which involve contributions of State resources (Executive Decree No. 1406 of 24 October 2008, which provides that State resources shall not be contributed to funds of a private nature), the Committee does not doubt the expressed will of the Government to look after the general interest, ensure equality, avoid unreasonable excesses in collective agreements and ensure financial and budgetary balance, but wishes to emphasize that these are permanent and unalterable limitations on the right of collective bargaining of workers’ organizations incompatible with Convention No. 98, which provides for free and voluntary bargaining of conditions of work and if the Government wishes to pursue a policy which seeks those objectives which, moreover, are legitimate, it can do so in the framework of collective bargaining without resorting to impositions which limit the content of bargaining by the parties to that bargaining. The Committee recalls that limitations on the free determination of wages in collective bargaining are only acceptable in exceptional circumstances. In this respect, the Committee has indicated that “If, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers’ living standards” [see Digest, op. cit., para. 1024]. Furthermore, the Committee has taken the view that the parties involved in collective bargaining can improve the legal provisions on pensions [see 353rd report, Case No. 2434, para. 538].
10. 831. Furthermore, the Committee recalls the principle that repeated recourse to legislative restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Moreover, this may have a detrimental effect on workers’ interests in unionization, since members and potential members could consider useless joining an organization, the main objective of which is to represent its members in collective bargaining, if the results of such bargaining are constantly cancelled by law [see Digest, op. cit., para. 1019]. The Committee also recalls that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers’ and employers’ organizations should have the right to organize their activities and to formulate their programmes [see Digest, op. cit., para. 881].
11. 832. The Committee has considered that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties [see Digest, op. cit., para. 912].
12. 833. In particular, the Committee also emphasizes the principle that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with collective agreements entered into by, or on behalf of, that authority [see Digest, op. cit., para. 1033].
13. 834. The Committee requests the Government to restore the right of collective bargaining on conditions of work and living standards of workers and to inform it accordingly.
14. 835. With respect to the alleged declaration of absolute nullity or the imposition of the revision of clauses of collective agreements by administrative means (in those cases where the administrative authority considers that the clauses of such agreements contain excesses and unreasonable privileges which conflict with the general interest in the numerous cases listed indicatively in Constituent Resolution No. 008 and its regulations for application), the Committee observes that the administrative procedure is regulated by Ministerial Order No. 00080 and Order No. 00155A, both of the Ministry of Labour. The Committee emphasizes that control of clauses of public sector agreements for possible abuse should not be up to the administrative authority, since it cannot be both judge and party, but a matter for the judicial authority, and then only in extremely serious cases, and not for just any significant benefit which has been agreed. The Committee therefore requests the Government that control of allegedly abusive clauses of collective agreements should only be carried out through the courts, so as to ensure impartiality, the right of defence and due process. The Committee observes that in the present case, the decisions of the administrative authorities are not subject to any appeal whatsoever, whether administrative or judicial and considers that the current regulations, especially the instruments of the Ministry of Labour and Employment, which allow it unilaterally to declare void or reduce a wide range of clauses of collective agreements, is a serious violation of the principle of free and voluntary bargaining. Therefore, the Committee requests the Government to annul those ministerial texts and their effects and to indicate whether Constituent Resolution No. 008 is compatible with exclusively judicial control (not administrative) of the possible abusive character of certain clauses of collective agreements in the public sector. The Committee requests the authorities that, if it is wished to amend the result of collective bargaining, it should wait until the expiry of the collective agreements and the respective employers should renegotiate their content with the trade union organizations.
15. 836. More specifically, with respect to the revision of the clauses of the collective agreements of the Petroecuador company and its subsidiaries and the health sector, by decision of the commission on the revisions of collective agreements in the public sector, the Committee notes the excesses of some of the clauses highlighted by the Government, and that the complainant organization FETRAPEC implicitly recognizes some excesses in certain clauses. The Committee considers that, in conformity with the principles and considerations expressed in the foregoing paragraphs, the revisions made by the Ministry of Labour and Employment should be cancelled. The Committee understands that the FETRAPEC organizations would be disposed to engage in renegotiation with their employers and that this would probably also be the case in the health sector, where, for example, the clause on working hours and days, and other clauses, were declared void.
16. 837. The Committee requests the Government to take steps to ensure that these collective agreements are renegotiated if the trade union organizations confirm the wish to do so.
17. 838. The Committee requests the Government to keep it informed of measures taken to give effect to its recommendations and, noting the request of the complainant organizations, invites the Government to accept an ILO mission to assist in solving the problems observed in this case.
18. 839. Finally, the Committee requests the Government to send its observations on the recent communications from the CEOSL dated 16 March and 20 May 2009.

The Committee's recommendations

1. 840. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the complainant organization FETRAPEC to confirm the status of trade union official of the signatories of the complaint, including the dismissed persons, for example, by sending the minutes of the general meeting in which they were elected by their trade union organization, grass-roots union or federation. In turn, the Committee requests the Government to indicate: (1) whether the consideration that the four dismissed persons were not trade union officials was related to their dismissal, which might have made them lose that status under Ecuadorian legislation; and (2) the “specific facts” which motivated the dismissal of those four persons as it would appear from the Government’s reply that they were dismissed unilaterally and without any indication of the grounds. The Committee also requests the Government to communicate the sanctions set out in the legislation in the case of arbitrary and unjustified dismissals of trade unionists.
   • (b) The Committee requests the Government and the authorities competent for issuing labour legislation to hold in-depth consultations in advance and allowing sufficient time with the workers’ organizations concerned in order, as far as possible, to reach shared solutions.
   • (c) The Committee observes that Constituent Resolutions Nos 002, 004 and Executive Decree No. 1406 set a permanent cap on remuneration in the public sector, compensation for termination of the employment relation and prohibit supplementary private pension schemes which involve contributions of State resources. To the extent that these are permanent limitations on collective bargaining, the Committee requests the Government to restore the right of collective bargaining on conditions of work and living standards of workers and to inform it accordingly.
   • (d) As regards the imposition of the revision of clauses of public sector collective agreements by administrative means (declaration of nullity or amendment) which contain excesses and unreasonable privileges (Constituent Resolution No. 008) by unilateral decision of a commission (Ministerial Order No. 00080 and Order No. 00155A) the Committee emphasizes that control of allegedly abusive clauses of collective agreements should not be up to the administrative authority (which in the public sector is both judge and party), but the judicial authority, and then only in extremely serious cases. Therefore, the Committee requests the Government to annul those ministerial texts and their effects since they seriously violate the principle of free and voluntary collective bargaining consecrated in Convention No. 98, and to indicate whether Constituent Resolution No. 008 is compatible with exclusively judicial control of the possible abusive character of certain clauses of collective agreements in the public sector. The Committee requests the competent authorities that, if it is wished to amend the result of collective bargaining, that they should wait until the expiry of the collective agreements and the respective employers should renegotiate their content with the trade union organizations.
   • (e) The Committee requests the Government to take steps to ensure that the collective agreements, which were revised by administrative process, are renegotiated if the trade union organizations confirm the wish to do so.
   • (f) The Committee requests the Government to keep it informed of measures taken to give effect to the various recommendations formulated in this report and, noting the request of the complainant organizations, invites the Government to accept an ILO mission to assist in solving the problems observed in this case.
   • (g) The Committee requests the Government to send its observations on the communications from the CEOSL dated 16 March and 20 May 2009.

Annex

1. Provisions criticized by the complainant organizations
2. - Constituent Resolution No. 001
3. Decisions of the Constituent Assembly are hierarchically superior to any other legal rule and compliance is mandatory for all natural and legal persons and other public authorities without any exception whatsoever. No decision of the Constituent Assembly shall be subject to review or challenge by any of the constituted powers.
4. - Constituent Resolution No. 002
5. Article 1. Maximum remuneration. The standard monthly remuneration is set at an amount equivalent to 25 times the standard basic wage of the private sector worker for dignitaries, judges, authorities, officials, delegates or representatives to collegiate bodies, members of the armed forces and police, civil servants and public sector workers, both financial and non-financial.
6. The following are not considered part of the standard monthly wage: the 13th and 14th month salary or remuneration, travel and subsistence, overtime and additional hours, subrogation of functions or duties, housing allowance, employer's contribution to the Ecuadorian Social Security Institute and reserve funds.
7. Article 2. Scope. This Resolution shall be of immediate and mandatory application to the following entities:
8. (a) institutions, organizations, dependent and autonomous entities and special programmes, appointed, devolved and decentralized which are or form part of the executive, legislative and legal functions;
9. (b) control and regulatory bodies: National Audit Office, Attorney General's Office, Public Prosecutor's Office, Civil Corruption Control Commission, superintendencies, National Telecommunications Council, National Telecommunications Secretariat, Public Ombudsman, Supreme Electoral Tribunal, provincial electoral tribunals, Internal Revenue Service and Constitutional Court, National Electricity Council, National Energy Control Centre and National Radio and Television Council;
10. (c) entities which make up the autonomous sectional system, its enterprises, foundations, companies or entities, dependent, autonomous, devolved, decentralized or appointed to them, whose budget is financed 50 per cent or more from State resources;
11. (d) public financial institutions;
12. (e) financial institution in the process of restructuring or liquidation;
13. (f) the Ecuadorian Social Security Institute (IESS);
14. (g) the port authorities and the Ecuadorian Customs Corporation;
15. (h) bodies and institutions created to exercise State powers, the provision of public services or to carry on economic activities assumed by the State;
16. (i) legal persons created by sectional legislative act for the provision of public services;
17. (j) public universities and polytechnics and public educational institutions at any level;
18. (k) the police, comprising the three branches of the armed forces and the polices;
19. (l) the Transit Commission of Guayas province;
20. (m) public and private enterprises whose capital or assets are funded 50 per cent or more from public resources and public sector institutions or bodies;
21. (n) legal persons under private law or commercial companies, irrespective of the purpose, whether corporate, public, profit or not-for-profit, whose share capital, assets or tax participation are funded 50 per cent or more from public resources;
22. (o) non-governmental organizations: civil societies and foundations, whose assets, capital, assets or financing are funded 50 per cent or more from public resources;
23. (p) autonomous estates, investment funds or commercial trusts with 50 per cent or more of public resources; and
24. (q) in general, other institutions, bodies, institutions, executive entities, programmes and projects which are financed 50 per cent or more from State resources.
25. Article 3. Exceptions. Excepted from the application of the limit on remuneration fixed in this Resolution are foreign service officials, members of the armed forces or other State institutions who are permanently assigned to diplomatic or consular functions or military operations abroad, representing Ecuador.
26. The remuneration of dignitaries, judges, authorities, officials, administrative staff, civil servants and public sector workers who work in public institutions and who live in the island province of Galápagos may be increased by up to 100 per cent of the said remuneration.
27. Article 8. Settlements and compensation. The amount of compensation, for abolition of posts, voluntary resignation or voluntary pensionable retirement of officials, public servants and teachers in the public sector, with the exception of those in the armed forces and national police, shall be up to seven times the standard basic minimum wage of a private sector worker for each year of service up to a maximum amount of 210 times the standard basic minimum wage of a private worker in total. To that end, public sector institutions shall establish on a planned basis the maximum number of resignations to be processed and financed each year, at the same time establishing the corresponding budgets, in coordination with the Ministry of Finance, if applicable.
28. The employment authorities shall supervise the right to stability of employment of workers. Except in the case of unfair dismissal, compensation for abolition of posts or termination of employment relations of staff of the institutions contemplated in article 2 of this Resolution, agreed in collective agreements, transactions, settlements and any other agreement however called, which stipulates the payment of compensation, bonuses or contributions for the termination of any type of individual employment relationship, shall be seven times the standard basic minimum wage of the private worker for each year of service up to a maximum amount of 210 times the standard basic minimum wage of a private worker in total.
29. All officials, public servants, teachers and public sector workers who receive the benefits of the compensation or bonuses indicated in this article may not re-enter the public sector, with exception of dignitaries elected in popular elections or freely appointed.
30. Article 9. Prohibition. Compliance with the provisions contained in this Constituent Resolution shall be mandatory and they shall not be open to complaint, challenge, action for protection (amparo), demand, claim or any other legal or administrative action.
31. No authority, judge or court shall recognize or declare as an acquired right a total monthly income which exceeds the limits indicated in this Constituent Resolution.
32. Transitional provisions
33. One. By 29 February 2008, all the entities indicated in article 2 shall be adjusted to the principles of fairness established by the National Technical Secretariat for Human Resources Development and Public Sector Remuneration (SENRES), or by the relevant regulatory authorities. The new remuneration scales shall enter into force on 1 March 2008.
34. Remuneration that is less than the maximum standard monthly remuneration established in article 1 of this Resolution at the date of issue of this Resolution shall not be liable to reduction.
35. - Constituent Resolution No. 004
36. Article 1. The State guarantees stability for all workers, collective bargaining and freedom of association, in compliance with the universal principles of social law which guarantees equality of citizens in work, and prevention of economic and social inequality.
37. Compensation for unfair dismissal of staff of the institutions contemplated in article 2 of this Resolution No. 2, approved by the Constituent Assembly on 24 January 2008, agreed in collective agreements, transactions, settlements and any other agreement however called, which stipulates the payment of compensation, bonuses or contributions for unfair dismissal, may not exceed 300 times the standard basic minimum wage of a private worker.
38. No authority, judge or court shall declare as an acquired right, or order the payment, of compensation for termination of employment relations which constitutes unfair dismissal greater than the amount established in the previous paragraph.
39. Article 2. Compliance with the provisions contained in this Constituent Resolution shall be mandatory and they shall not be open to complaint, challenge, action for protection (amparo), demand, claim or any other legal or administrative action.
40. Article 3. All provisions which oppose or conflict with this Resolution are repealed.
41. - Constituent Resolution No. 008
42. The Plenary of the Constituent Assembly, considering that for the sake of fairness in work, it is necessary to revise and regulate the clauses of collective agreements concluded by public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, which contain unreasonable and excessive privileges and benefits of minority groups which run counter to the general interest and the workers themselves; and in the exercise of its attributions and powers, decides as follows:
43. General provisions
44. …
45. Four: Collective bargaining is guaranteed in public sector institutions, public state enterprises, sectional bodies and entities under private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, in accordance with the terms established in the Constituent Resolutions and regulations of the Ministry of Labour and Employment.
46. Transitional provisions
47. …
48. Three: Clauses of collective agreements which are in force and which were signed by public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, shall be automatically adjusted to the provisions of the Constituent Resolutions and regulations issued by the Ministry of Labour and Employment within a period of 180 days.
49. Collective agreements to which this transitional provision refers shall not protect those persons who exercise management, executive and representative and managerial duties generally, or staff who by the nature of their functions or work are subject to public order acts, especially the Organic Act on the Civil Service and Administrative Profession, Approval and Unification of Public Sector Remuneration.
50. The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly and shall establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to trade union officials, payment of holidays and recognition of other benefits for the worker's family group, additional gratuities and bonuses for voluntary retirement, free supply of the company's goods and services, among other clauses of that kind.
51. Clauses of collective agreements which are not adjusted to the parameters to which this transitional provision refers and which contain unreasonable and excessive privileges and benefits which run counter to the general interest are void in law.
52. Judges, courts and administrative authorities shall enforce this provision.
53. Four: The executive function, in the course of social dialogue, within a period of one year, shall establish the principles governing collective agreements in all public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, which may not be modified.
54. Five: This Constituent Resolution shall be regulated by the President of the Republic within 60 days.
55. Final provisions
56. …
57. Three: Compliance with this Resolution is mandatory and therefore it shall not be open to complaint, challenge, action for protection (amparo), demand, claim, administrative or judicial opinion or judgement and shall enter into force immediately, without prejudice to its publication in the Constituent Journal and/or the Official Journal.
58. - Regulations for the application of Constituent Resolution No. 008
59. (Constitutional President of the Republic)
60. …
61. Transitional provisions
62. …
63. Three: Clauses of collective agreements which are in force and which were signed by public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, shall be automatically adjusted to the provisions of the Constituent Resolutions and regulations issued by the Ministry of Labour and Employment within a period of 180 days from 1 May 2008. [This time limit was subsequently extended to one year by Decree No. 1396 of the Constitutional President of the Republic.]
64. Collective agreements to which this transitional provision refers shall not protect those persons who exercise management, executive and representative and managerial duties generally, or staff who by the nature of their functions or work are subject to public order acts, especially the Organic Act on the Civil Service and Administrative Profession, Approval and Unification of Public Sector Remuneration.
65. The process of revision of the collective agreements to which this transitional provision refers, in which employers and workers shall participate, shall be done publicly within a period of 180 days from the entry into force of Constituent Resolution No. 008 and shall establish clear restrictions on all clauses which contain excesses and privileges such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to workers or trade union officials, compensation for change or substitution of employer, contributions by the entity or company to extra-statutory or personal pension funds, payment of holidays and recognition of other excessive benefits for the worker's family group, additional gratuities and bonuses for voluntary separation or retirement, free supply of the company's goods and services, payment of the 13th and 14th months in amounts or values greater than those laid down by law, contribution by the entity or company to trade union activities, holidays in addition to public holidays established by law, among other clauses of that kind.
66. The Minister of Labour and Employment shall issue regulations and procedures for the revision of the collective agreements concerned. The highest authorities in the various public and private sector institutions charged with applying this provision shall be personally liable in civil law for their application.
67. Clauses of collective agreements which are not adjusted to the parameters to which this transitional provision refers and which contain unreasonable and excessive privileges and benefits which run counter to the general interest are void in law.
68. Judges, courts and administrative authorities shall enforce this provision.
69. Four: The executive function, in the course of social and employment dialogue, within a period of one year, shall establish the principles governing collective agreements in all public sector institutions, state enterprises, sectional bodies and entities subject to private law in which, under any name, nature or legal structure, the State or its institutions have a majority shareholding and/or direct or indirect contributions of public resources, which may not be modified.
70. - Ministerial Order No. 00080
71. (Minister of Labour and Employment)
72. …
73. Article 1. The direction and coordination of the process of automatic adjustment and revision of the clauses of collective agreements to which transitional provisions three of Constituent Resolution No. 008 of 30 April 2008 and the Regulations for the application of that Resolution, of 5 June of that year, shall be the responsibility of the following commissions:
74. For the Sierra and Amazonia region: Under-secretary for Labour and Employment of Sierra and Amazonia, presiding; Regional Director of Labour of Quito and Technical Director of the Legal Department; and
75. For the coast and Galapagos region: Under-secretary for the coast and Galapagos, presiding; Regional Director of Labour of Guayaquil, and Legal Adviser.
76. The legal officer designated by the respective Under-secretary for Labour and Employment shall act as secretary to these commissions.
77. To accomplish their work, the foregoing commissions, under their responsibility, may designate revising subcommissions which will be composed of officials and advisers of the Ministry of Labour and Employment.
78. Article 2. The work of the revising commissions and subcommissions shall be supervised by the Vice-minister of Labour and Employment, who shall keep the Minister of Labour and Employment constantly informed of progress and results of the revision process.
79. Article 3. The Ministry of Labour and Employment shall designate legal officers to carry out an analysis prior to the revision work of the commissions and subcommissions of collective agreements and identify cases and clauses which contain the privileges and excesses mentioned in paragraph three of transitional provision three of Constituent Resolution No. 008 and paragraph three of transitional provision three of the Regulations for the application of that Resolution.
80. Once the prior reviews have been carried out, the commissions shall commence their activities, immediately drawing up a timetable for the revision of collective agreements in force in the entities and institutions to which this Order refers.
81. Article 4. Three employers' representatives and three workers' representatives, duly accredited to the secretary of the commission, shall participate in the revision process, which shall be public.
82. This process shall take place at the place, time and on the date indicated by the commission in the convocation.
83. On completion of the process of revision of a collective agreements, the secretary of the commission shall prepare and sign with the president of the commission the corresponding revision order, which shall be appended to the collective agreement as an integral part thereof.
84. Article 5. The agreed clauses of collective agreements which are in force shall be adjusted to the provisions laid down in Constituent Resolutions Nos 002 and 004, concerning amounts and maximum limits of remuneration and compensation for termination of employment and unfair dismissal.
85. Article 6. The scope of protection and "amparo" of collective bargaining shall not depart from the relevant provisions of the current Political Constitution of the Republic and the collective agreements themselves, except in relation to persons who perform or exercise management, executive and functions of representation and management generally, who are expressly excluded by Constituent Resolution No. 008.
86. Article 7. In the revision process, stability, the provisions on the workplace environment and all other clauses which normally form part of collective agreements and which do not contain abuses, excesses and privileges which conflict with the general interest shall be respected.
87. Article 8. This process shall identify all clauses which contain excess and abuses, such as: transfer and transmission of posts to family members on retirement or decease of the worker, additional hours and overtime not worked and paid to workers and trade union officials, compensation for change or substitution of employer, contributions by the entity or company to extra-statutory or private pension funds, payment of holidays and recognition of other excessive benefits for the worker's family group, additional gratuities and bonuses for voluntary retirement, free supply of the company's goods and services, payment of holidays and the 13th and 14th month remuneration in amounts greater than those laid down by law, contributions by the entity or company to trade union activities, holidays additional to those established by law, suspension of work to hold meetings and other trade union activities without the prior authorization of the relevant authority, among other clauses of that kind.
88. In accordance with the provisions of paragraph four of transitional provision three of Constituent Resolution No. 008, these clauses are void in law, have no legal validity and effect, and are therefore abolished by effect of declaration of nullity.
89. Article 9. In accordance with the provisions of Constituent Resolutions Nos 002, 004 and 008, the previsions and regulations of this Order, and those generated in the revision process, compliance therewith is mandatory and therefore they shall not be open to complaint, challenge, action for protection (amparo), demand, claim, administrative or judicial opinion or judgement whatsoever.
90. - Ministerial Order No. 00155A
91. (Minister of Labour and Employment)
92. Decides: To issue the following rules of procedure for the revision of the collective agreements mentioned in transitional provision three of Constituent Resolution No. 008 of 30 April 2008:
93. 1. These rules of procedure, which apply to the process of revision of collective agreements in the public sector, shall be known by the participants at the commencement of the meeting of the body responsible for carrying out that task.
94. 2. Legally, the process of revision is the act of subjecting a matter to a new examination, to correct, amend or remedy it. In consequence, the present revision process for which the commission is responsible, establishes that from the procedural point of view, the clauses of the collective agreement may be declared void in law, amended in part or in full in the exercise of the discretionary power granted to that body under the provisions of Constituent Resolution No 008, its Regulations for application and Ministerial Order No. 00080.
95. 3. In the revision process, the parties (employers and workers) may intervene through a spokesperson who may be designated at the beginning of the meeting where the revision of the collective agreement is to take place. This shall be noted in the minutes and shall allow the said representative to express views, opinions and suggestions to enhance the focus of the commission's revision work. These contributions shall be appraised by the members of the commission applying the principle of healthy criticism to the revision of the clauses of the collective agreement.
96. 4. In accordance with final provision three of Constituent Resolution No. 008, the revision process which is carried out under this procedure is mandatory and the minute of the revision of the collective agreement shall not be open to complaint, challenge, action for protection (amparo), demand, claim by the company or workers, or any administrative or judicial opinion or judgement, and that fact shall expressly stated in the said document.
97. 5. The parties involved in the revision process shall be invited by a notice prepared and signed by the president of the commission, and shall convene them indicating the day and time of the meeting for that purpose.
98. 6. On receipt of the notice from the president of the commission on the revision of collective agreements in the public sector, the employer must immediately submit within 24 hours, in magnetic form, a copy of the collective agreement subject to revision which shall be delivered to the secretariat of that body in the Ministry of Labour and Employment building, 12th floor.
99. 7. If on the day and at the time indicated for the revision process, one of the parties (representatives of the public sector enterprise or workers' organization) does not appear, the fact shall be noted on commencing the revision meeting and shall continue with the party that has appeared. If both parties do not appear, the fact shall likewise be noted and the revision of the collective agreement shall proceed in accordance with the procedure indicated below.
100. 8. The process of revision of the collective agreement shall commence with the presentation of the documentation accrediting the designation of the representatives of the employer and workers, which shall be incorporated as accreditation documents in the minutes. Failing this, a period of 72 hours shall be granted to legitimize their participation, and shall be included in the minutes. If such accreditation is not produced by any of the parties, the minute of the revision meeting shall constitute accreditation of their representation and appearance in the process.
101. 9. Once these representatives have been accredited or legitimized subsequently, the participants shall be given a folder containing the legal documentation applicable to the process.
102. 10. When these documents have been handed out, the president of the commission for the revision of collective agreements in the public sector shall declare the meeting open and shall ask the secretary first to read the rules of procedure for the revision of the collective agreement and that shall be noted in the minute.
103. 11. The revision process shall begin with the preparation of the draft minute and shall continue with the reading of all and each of the clauses of the collective agreement subject to revision, content which may be deleted in full or amended in accordance with the opinion of the commission if there are found to be excesses and privileges, independently of the application of the existing rules in Constituent Resolutions Nos 002, 004 and 008 and the Regulations for the application of the latter and Ministerial Order No. 00080.
104. 12. Once the reading of the clause being revised has been completed, the president of the commission shall inform the parties whether the clause is void in law and, therefore, non-existent, in which case it is automatically adjusted and no longer forms part of the collective agreement.
105. 13. If the clause has to be amended, it shall be amended, and shall form part of the collective agreement.
106. 14. The procedure established in paragraphs 4 and 5 shall continue until the revision of the agreement has been completed.
107. 15. As the revision process is the exclusive prerogative of the commission, the participants may not negotiate or challenge the nullity or amendment of clauses of the collective agreement. That notwithstanding, the participants may participate with opinions or views which allow the commission to have a better analysis during the revision process.
108. 16. The revision process shall be recorded in a minute whose preparation shall commence simultaneously with the revision process, which shall be signed by the participants and shall constitute an authorizing document. The revised collective agreement shall be codified so as not to show the clauses declared void in law but shall show the clauses amended based on the opinion of the revising commission and the contributions of the participants, employer and workers, it being clarified that the latter contributions do not bind the commission, which has the discretion to take them into account or not.
109. 17. If one of the participating parties leaves the meeting in which the revision of the collective agreement is taking place, this act shall be taken as tacit acceptance of the work of the revising commission. The secretary of the revising commission shall note the fact, whereupon the president shall rule that the revision process shall continue.
110. 18. The minute of revision process with all the supporting documentation shall be prepared in one original and five copies of equal standing and content, which shall be signed by all the members of the revising commission and the employer's and workers' representatives. If they do not do so, a special note shall be made in the minute, and the secretary of the commission shall certify the validity of the document.
111. 19. Once the process of revision of the collective agreement has been completed and the minute signed, the secretary of the body by a separate procedure shall codify the revised clauses, which shall also be checked by the president of the commission on his own responsibility, which codification shall constitute the legal instrument which shall in future regulate the application of the collective agreement in force between the parties and which as an addendum shall form part of the respective collective agreement.
112. 20. Notwithstanding the foregoing, the revision of the collective agreement shall have legal effects and its clauses shall be of mandatory application for the parties from the moment when the minute of the revision is signed, copy of which a duly certified by the secretary of the commission shall be delivered to the parties at the end of the process of revision of the collective agreement.