Report in which the committee requests to be kept informed of development - Report No 372, June 2014

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

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

1. 264. The Committee last examined this case at its March 2013 meeting, when it presented an interim report to the Governing Body [see 367th Report, approved by the Governing Body at its 317th Session (2013), paras 735–745].
2. 265. The Government sent its observations in a communication dated 17 December 2013.
3. 266. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 267. In its previous examination of the case in March 2013, the Committee made the following recommendations [see 367th Report, para. 745]:
   • (a) The Committee again requests the Government to take the necessary measures to ensure that the trade union dues are immediately returned to the workers affiliated with FETRAPEC and to keep it informed in that regard. Moreover, the Committee again requests the Government to encourage without delay the initiation of discussions between FETRAPEC and the enterprise with a view to recognition of the trade union organization.
   • (b) As regards the dismissal of the four trade union officials (Mr Edgar de la Cueva, Mr Ramiro Guerrero, Mr John Plaza Garay and Mr Diego Cano Molestina), the Committee again requests the Government to encourage the initiation of discussions between FETRAPEC and the enterprise with a view to the reinstatement of these union officials.
   • (c) As regards the alleged mass dismissals that took place at the E.P. PETROECUADOR enterprise in 2009 and 2010, the Committee urges the Government to send without delay detailed information on these allegations and its observations on the alleged anti union nature of the dismissals.
   • (d) As regards the alleged violation of the collective agreement in force regarding compensation owed to workers who voluntarily ended their employment at the aforementioned enterprise, the Committee, without calling into question the statute of limitations that applies to the judicial proceedings referred to by the Government, highlights the importance of the issues raised and again requests the Government to promote dialogue between the Confederation of Workers of Ecuador (CTE) and the enterprise with a view to finding a solution to this dispute.
   • (e) As regards the alleged dismissals at the Unidad Eléctrica de Guayaquil enterprise and the ongoing criminal proceedings against the workers, the Committee deeply regrets that the Government has not responded and urges it to do so without delay.
   • (f) The Committee again requests the Government to annul Ministerial Orders Nos 00080 and 00155A and their effects, since they seriously violate the principle of free and voluntary collective bargaining established by Convention No. 98, and to indicate whether Constituent Resolution No. 008 is compatible with an exclusively judicial control of the possibly abusive nature of certain clauses of collective agreements in the public sector. The Committee again requests the Government to continue to promote dialogue with the representative trade union organizations and to keep it informed of developments, particularly as regards meetings with the union representatives and the work of the National Labour Council (CNT).

B. The Government’s reply

1. 268. In its communication of 17 December 2013, the Government sent its reply in relation to the recommendations made by the Committee. As to recommendation (a), the Government states that the works councils of the now defunct subsidiaries of E.P. PETROECUADOR were members of FETRAPEC and that those works councils paid contributions directly to the Federation. The workers only paid contributions to the works councils corresponding to their subsidiary and those works councils are currently in possession of the union dues in question. Therefore, having provided this information, the Ministry of Labour Relations takes note of the recommendation and undertakes to adopt the necessary measures to ensure that the union dues are returned to the members of FETRAPEC, and to inform the Committee of any developments in that regard. Moreover, the Government adds that, currently, the works council that is recognized and accredited in accordance with the Ecuadorian legislation in force is the Works Council of the Public Hydrocarbon Enterprise PETROECUADOR (CETRAPEP), which was approved by Ministerial Order No. 01336 of 20 August 2013. The Government highlights that the previous works councils that made up FETRAPEC, which belonged to the former subsidiaries of E.P. PETROECUADOR, have forfeited their legal personality by failing to renew their statutes when their employer became defunct, in accordance with the second transitory provision of Decree No. 315. The Government states that, in the light of these facts, FETRAPEC is not currently a representative organization, nor does it have legal personality.
2. 269. As to recommendation (b), the Government states that the employment relationship of public officials who are subject to the regulations laid down in the Labour Code may be terminated by means of unfair dismissal, which is provided for in and regulated by section 188 of the Labour Code, which applies to workers in both the public and private sectors without distinction. Trade union members and officials do not fall under a special category of workers who enjoy privileges that other workers do not, just as unfair dismissal is not used to harm members of trade union movements. The Government states that, in Ecuador, a dismissal is only illegal when the worker is not compensated in accordance with the law, for which reason, no enterprise that has fulfilled the obligations set out in section 188 of the Labour Code is obliged to reinstate dismissed workers.
3. 270. As to recommendation (c), the Government states that all the dismissed workers, of whom only a tiny percentage were trade union officials, were duly compensated in accordance with section 188 of the Labour Code. The Government reaffirms that none of the dismissals was anti-union in nature, as the Labour Code applies to all workers without distinction, and that trade union members and officials do not enjoy privileges that other workers do not, just as unfair dismissal is not used to harm members of trade union movements. Ecuadorian legislation does not consider the unilateral termination of an employment relationship to be illegal, provided that the worker is duly compensated. Furthermore, it should be noted that the current Government has approved three times more trade union organizations than other governments and that the proposed new Labour Code, which has been developed with the technical assistance of the ILO, guarantees the right to freedom of association by branch without interference from employers. These facts demonstrate the current Government’s wholehearted support for the trade union movement in Ecuador.
4. 271. As to recommendation (d) on the alleged violation of the collective agreement in force regarding compensation owed to workers who voluntarily ended their employment at the aforementioned enterprise, the Government states that the ruling of the National Court establishes that the workers who elected to end their employment voluntarily freely accepted their dismissal and signed the relevant severance agreement, thereby accepting the severance pay provided for therein. The Government indicates that, in the light of these facts, promoting dialogue between the enterprise and the workers as an alternative administrative measure to resolve the conflict is no longer necessary, given that the ruling of the national court has resolved the conflict through the judicial system, which has followed the correct procedure in accordance with the Constitution and the law.
5. 272. As to recommendation (e) on the alleged dismissals at the Unidad Eléctrica de Guayaquil enterprise and the ongoing criminal proceedings against the workers, the Government indicates that under Decree No. 1786, issued by the President of the Republic and published in Official Journal No. 625 of 2 August 2009, the then Board of the Temporary Electrical Power Administration of Guayaquil became the Unit for the Generation, Distribution and Commercialization of Electrical Energy of Guayaquil (Unidad Eléctrica de Guayaquil), which, according to article 1 of the aforementioned Decree, comes under the authority of the Executive, which is part of the central public administration. In the light of these facts and with regard to the alleged dismissals, the Government states that, on the morning of Wednesday 18 November 2009, the aforementioned Unidad Eléctrica de Guayaquil workers arbitrarily stopped work for no legitimate reason and began shouting slogans against the authorities of the enterprise. According to the Government, it became clear from the numerous press articles on the incident that the workers had even resorted to the unauthorized use of automobiles to block the entrances to the enterprise’s premises in order to carry out the stoppage. It should be noted that those automobiles are public property and should only be used for work purposes. The Government states that, in this way, the workers endangered the safety and physical integrity of all the persons present at that time by committing acts that are expressly prohibited by section 46, paragraphs (a) and (b), of the Labour Code. In the light of these facts and as is reflected in the documentation in the possession of the Guayaquil Department of the Ministry of Labour Relations, the dismissals were approved in accordance with the third reason listed in section 172 of the Labour Code, which led the labour inspector, who was acting on behalf of the administrative authority and using the powers conferred on him by section 545, paragraph 5, of the Labour Code, to approve the dismissal of the workers in question.
6. 273. As to recommendation (f), the Government indicates that Ministerial Order No. 00080, published in Official Journal No. 394 of 1 August 2008, was issued with the aim of automatically adjusting the clauses of the collective agreements in question to ensure their compliance with the provisions of Constituent Resolution No. 008. The aforementioned ministerial order is understood as being an instrument for regulating the transition from the former collective agreements in place prior to Constituent Resolution No. 008 to ensure their compliance with its provisions. Therefore, the ministerial order has served its purpose, is final and complies with Ecuadorian legislation without violating the principle of free and voluntary collective bargaining enshrined in Convention No. 98 for the reasons detailed below. Ecuador respects the principles enshrined in Convention No. 98 and has on no occasion prohibited free collective bargaining, rather it has regularized such bargaining so that it takes place within the framework of established parameters, which are in keeping with the limitations of the State of Ecuador, its fiscal budget and its constitutional principles, such as those established in article 286 of the Constitution, which provides that: “At all levels of Government, public funds shall be managed in a sustainable, responsible and transparent manner and shall seek to achieve economic stability. Permanent expenditure shall be funded with permanent sources of income. Permanent expenditure on health care, education and the judicial system shall take priority and, in exceptional circumstances, shall be funded with non-permanent sources of income”. In this connection, the Government also refers to Ministerial Order No. 00155A, which was published in Official Journal No. 455 of 14 October 2008 and lays down the regulations for revising collective labour agreements, in accordance with the provisions of Constituent Resolution No. 008, but which does not prevent free collective bargaining, provided that it takes place within the established parameters and is in keeping with the principle enshrined in article 286 of the Constitution and the principles of equality and transparency. Ministerial Order No. 00155A also seeks to ensure equal pay for equal work in the public sector by respecting differences but not excesses and privileges, which cannot be sustained by the budget of the State of Ecuador and which undermine the principle of equity. Thus, Ministerial Order No. 00155A is also final and complies with Ecuadorian legislation.
7. 274. As to the Committee’s request for the Government to indicate whether Constituent Resolution No. 008 is compatible with an exclusively judicial control, the Government states that the fourth transitory provision of Constituent Resolution No. 008 provides that the Executive that shall be responsible for establishing the criteria that shall govern the collective labour agreements of all public sector institutions, and that the third transitory provision of the regulations governing the application of Constituent Resolution No. 008 provides that the Ministry of Labour shall lay down the regulations and procedures for revising the aforementioned collective labour agreements and that “judges, courts and the administrative authorities shall enforce this provision”.

C. The Committee’s conclusions

1. 275. The Committee recalls that the allegations that were still pending in this case related to union dues being returned to the workers who are members of FETRAPEC; to the adoption of legislation that was contrary to trade union independence and the right to bargain collectively; and to the dismissal of trade unionists [see 367th Report, para. 745].

Recommendation (a)

1. 276. As to the recommendation requesting the Government to take the necessary measures to ensure that the trade union dues are immediately returned to the workers who are members of FETRAPEC, the Committee takes note of the Government’s statement to the effect that the Ministry of Labour Relations has taken note of the recommendation and undertakes to adopt the necessary measures to ensure that the union dues are returned to the members of FETRAPEC, and to inform the Committee of the progress made towards that end. The Committee requests the Government to keep it informed of any developments in that regard.
2. 277. As to the recommendation requesting the Government to encourage without delay the initiation of discussions between FETRAPEC and the enterprise with a view to recognizing the trade union organization, the Committee takes note of the Government’s statement to the effect that: (1) currently, the works council that is recognized and accredited in accordance with Ecuadorian legislation is CETRAPEP, which was approved by Ministerial Order No. 01336 of 20 August 2013; (2) the previous works councils that made up FETRAPEC, which belonged to the former subsidiaries of E.P. PETROECUADOR, have lost their legal personality by failing to renew their statutes when their employer became defunct, in accordance with the second transitory provision of Decree No. 315; and (3) FETRAPEC is not currently a representative organization, nor does it have legal personality. The Committee takes note of this information and will not pursue the examination of this allegation unless the organization in question sends up-to-date information to the contrary.

Recommendation (b)

1. 278. As to the recommendation requesting the Government to encourage the initiation of discussions between FETRAPEC and the enterprise with a view to reinstating the trade union officials, Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego Cano Molestina, the Committee takes note of the Government’s statement to the effect that: (1) the employment relationship of public officials subject to the regulations laid down in the Labour Code may be terminated without cause, which is provided for in and regulated by section 188 of the Labour Code, which applies to workers in both the public and private sectors without distinction; (2) trade union members and officials do not fall under a special category of workers who enjoy privileges that other workers do not, just as dismissal without cause is not used to harm members of trade union movements; and (3) in Ecuador, a dismissal is only illegal when the worker is not compensated in accordance with the law, for which reason no enterprise that has fulfilled the obligations set out in section 188 of the Labour Code is obliged to reinstate dismissed workers. In this regard, the Committee notes with concern that national legislation does not grant specific protection against anti-union dismissals and that there is no obligation to motivate the dismissals occurring in this context. In this respect, the Committee recalls that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities. The Committee also recalls that in a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the Government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts (see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 791 and 807). Based on the abovementioned principles, the Committee requests the Government to take the necessary measures, in full consultation with the social partners, to amend the legislation so as to guarantee specific protection against anti-union discrimination including anti-union dismissals and to establish sufficiently dissuasive sanctions. In addition, observing that the Government did not indicate the grounds on which the trade union leaders concerned have been dismissed, the Committee once again requests the Government to promote without delay the commencement of discussions between FETRAPEC and the company with a view to the reinstatement of the abovementioned trade union leaders. The Committee requests the Government to keep it informed on these matters.

Recommendation (c)

1. 279. As to the recommendation urging the Government to send, without delay, detailed information on the alleged mass anti-union dismissals that took place at the E.P. PETROECUADOR enterprise in 2009 and 2010, the Committee notes that the Government: (1) states that all the dismissed workers, of whom only a tiny percentage were trade union officials, were duly compensated in accordance with section 188 of the Labour Code; (2) reaffirms that none of the dismissals was anti-union in nature, as the Labour Code applies to all workers without distinction, that trade union members and officials do not enjoy privileges that other workers do not, just as unfair dismissal is not used to harm members of trade union movements, and that Ecuadorian legislation does not consider the unilateral termination of an employment relationship to be illegal, provided that the worker is duly compensated; and (3) states that the current Government has approved three times more trade union organizations than other governments and that it should be noted that the proposed new Labour Code, which has been developed with the technical assistance of the ILO, guarantees the right to freedom of association by branch without interference from employers. According to the Government, these facts demonstrate its wholehearted support for the trade union movement in Ecuador. In this regard, the Committee deeply deplores the fact that, despite the time that has elapsed, the Government has not sent the requested information, particularly on the alleged anti-union nature of the mass dismissals, having limited itself to emphasizing the fact that the dismissed workers and trade union members were compensated, and therefore urges it to take the necessary measures to ensure that an independent investigation is conducted into the allegation and to keep it informed of the outcome.

Recommendation (d)

1. 280. As to the alleged violation of the collective agreement in force regarding compensation owed to workers who voluntarily ended their employment at the aforementioned enterprise and the Committee’s recommendation requesting the Government, without calling into question the statute of limitations that applies to the judicial proceedings, to promote dialogue between the Confederation of Workers of Ecuador (CTE) and the enterprise with a view to finding a solution to this dispute, the Committee takes note of the Government’s statement to the effect that: (1) the ruling of the National Court establishes that the workers who elected to end their employment voluntarily freely accepted their dismissal and signed the relevant severance agreement, thereby accepting the severance pay provided for therein; (2) in the light of these facts, promoting dialogue between the enterprise and the workers as an alternative administrative measure to resolve the conflict is no longer necessary, given that the ruling of the National Court has resolved the conflict through the judicial system, which has followed the correct procedure in accordance with the Constitution and the law. The Committee takes note of this information.

Recommendation (e)

1. 281. As to the alleged dismissals at the Unidad Eléctrica de Guayaquil enterprise and the ongoing criminal proceedings against the workers, the Committee takes note of the Government’s statement to the effect that: (1) under Decree No. 1786, issued by the President of the Republic and published in Official Journal No. 625 of 2 August 2009, the then Board of the Temporary Electrical Power Administration of Guayaquil became the Unit for the Generation, Distribution and Commercialization of Electrical Energy of Guayaquil (Unidad Eléctrica de Guayaquil), which, according to article 1 of the aforementioned Decree, comes under the authority of the Executive, which is part of the central public administration; (2) in the light of these facts and with regard to the alleged dismissals, the Government states that, on the morning of Wednesday 18 November 2009, the aforementioned Unidad Eléctrica de Guayaquil workers arbitrarily stopped work for no legitimate reason and began shouting slogans against the authorities of the enterprise; (3) the workers had even resorted to the unauthorized use of automobiles to block the entrances to the enterprise’s premises in order to carry out the stoppage; it should be noted that those automobiles are public property and should only be used for work purposes; (4) in this way, the workers endangered the safety and physical integrity of all the persons present at that time by committing acts that are expressly prohibited by section 46, paragraphs (a) and (b), of the Labour Code (paragraphs (a) and (b) of this section prohibit workers from endangering their own safety, that of their fellow workers or that of other persons, as well as that of establishments, workshops and places of work; and from taking work tools, raw materials and manufactured products from factories, workshops, enterprises or establishments without the permission of the employer); and (5) in the light of these facts and as is reflected in the documentation in the possession of the Guayaquil Regional Department of the Ministry of Labour Relations, the dismissals were approved in accordance with the third reason listed in section 172 of the Labour Code (the third reason refers to how it is possible for an employer to terminate an employment contract, with prior approval, on grounds of dishonesty or immoral conduct), which led the labour inspector, who was acting on behalf of the administrative authority and using the powers conferred on him by the law, to approve the dismissal of the workers in question. The Committee takes note of the information on the dismissals but notes that it does not mention the status of the criminal proceedings. The Committee trusts that the ongoing criminal proceedings will be concluded in the near future and requests the Government to keep it informed of their outcome.

Recommendation (f)

1. 282. As to the Committee’s recommendation requesting the Government to annul Ministerial Orders Nos 00080 and 00155A and their effects, since they seriously violate the principle of free and voluntary collective bargaining enshrined in Convention No. 98, the Committee takes note of the Government’s statement to the effect that: (1) Ministerial Order No. 00080, published in Official Journal No. 394 of 1 August 2008, was issued with the aim of automatically adjusting the clauses of the collective agreements in question to ensure their compliance with the provisions of Constituent Resolution No. 008; (2) the aforementioned ministerial order is understood as being an instrument for regulating the transition from the former collective agreements in place prior to Constituent Resolution No. 008 to ensure their compliance with its provisions; the ministerial order has therefore served its purpose, is final and complies with Ecuadorian legislation without violating the principle of free and voluntary collective bargaining enshrined in Convention No. 98; (3) Ecuador respects the principles enshrined in Convention No. 98 and has on no occasion prohibited free collective bargaining, rather it has regularized it so that it takes place within the framework of established parameters, which are in keeping with the limitations of the State of Ecuador, its fiscal budget and its constitutional principles, such as those enshrined in article 286 of the Constitution, which provides that: “At all levels of Government, public funds shall be managed in a sustainable, responsible and transparent manner and shall seek to achieve economic stability. Permanent expenditure shall be funded with permanent sources of income. Permanent expenditure on health care, education and the judicial system shall take priority and, in exceptional circumstances, shall be funded with non-permanent sources of income”; (4) Ministerial Order No. 00155A, which was published in Official Journal No. 455 of 14 October 2008 and lays down the regulations for revising collective labour agreements, in accordance with the provisions of Constituent Resolution No. 008, does not prevent free collective bargaining, provided that it takes place within the established parameters and is in keeping with the principle enshrined in article 286 of the Constitution and the principles of equality and transparency. Ministerial Order No. 00155A also seeks to ensure equal pay for equal work in the public sector by respecting differences but not excesses and privileges, which cannot be sustained by the budget of the State of Ecuador and which undermine the principle of equity; and (5) Ministerial Order No. 00155A is also final and complies with Ecuadorian legislation. The Committee deeply regrets that, despite the years that have elapsed, the Government has not taken the necessary measures requested by the Committee. The Committee notes that this matter has been examined by the Committee of Experts on the Application of Conventions and Recommendations and draws its attention to the legislative aspects of these allegations.
2. 283. As to the Committee’s request for the Government to indicate whether the Constituent Resolution No. 008 is compatible with an exclusively judicial control of the possibly abusive nature of certain clauses of collective agreements in the public sector, the Committee takes note of the Government’s statement to the effect that the third transitory provision of the constituent resolution provides that the Ministry of Labour shall lay down the regulations and procedures for revising the aforementioned collective labour agreements and that “judges, courts and the administrative authorities shall enforce this provision”. The Committee takes note of this information and stresses that all regulations and procedures in that sphere should be developed in close consultation with the most representative workers’ and employers’ organizations. The Committee requests the Government to ensure the consultation of the workers’ and employers’ organizations on the regulations and procedures of the Ministry of Labour.
3. 284. As to the Committee’s request for the Government to continue to promote dialogue with the representative trade union organizations and to keep it informed of developments, particularly as regards meetings with the union representatives and the work of the CNT, the Committee regrets that the Government has not sent its observations on this matter and urges it to take all the necessary steps to give effect to this recommendation. The Committee requests the Government to keep it informed of any developments in this regard.

The Committee’s recommendations

1. 285. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to keep it informed of any developments regarding the return of the union dues to the members of FETRAPEC.
   • (b) The Committee requests the Government to take the necessary measures, in full consultation with the social partners, to amend the legislation as specified in its conclusions so as to guarantee specific protection against anti-union discrimination including anti-union dismissals and to establish sufficiently dissuasive sanctions against such acts. In addition, the Committee once again requests the Government to promote without delay the commencement of discussions between FETRAPEC and the company with a view to the reinstatement of the trade union leaders Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego Cano Molestina. The Committee requests the Government to keep it informed on these matters.
   • (c) As regards the alleged mass anti-union dismissals that took place in the E.P. PETROECUADOR enterprise in 2009 and 2010, the Committee deeply deplores the fact that, despite the time that has elapsed, the Government has not sent the requested information, particularly on the alleged anti-union nature of the mass dismissals, having limited itself to emphasizing the fact that the dismissed workers and trade union members were compensated, and therefore urges it to take the necessary measures to ensure that an independent investigation is conducted into the allegation and to keep it informed of the outcome.
   • (d) The Committee requests the Government to keep it informed of the outcome of the ongoing criminal proceedings against the workers who participated in a work stoppage in the Unit for the Generation, Distribution and Commercialization of Electrical Energy of Guayaquil (Unidad Eléctrica de Guayaquil) enterprise.
   • (e) The Committee urges the Government to annul Ministerial Orders Nos 00080 and 00155A and their effects, since they seriously violate the principle of free and voluntary collective bargaining enshrined in Convention No. 98. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
   • (f) The Committee requests the Government to ensure the consultation of the workers’ and employers’ organizations on the regulations and procedures of the Ministry of Labour.
   • (g) The Committee urges the Government to continue to promote dialogue with the representative trade union organizations, particularly as regards meetings with the union representatives and the work of the CNT, and to keep it informed of any developments in that regard.