Report in which the committee requests to be kept informed of development - Report No 396, October 2021

Case No 3378 (Ecuador) - Complaint date: 05-FEB-20 - Follow-up

Allegations: The complainant organizations denounce the opening of criminal proceedings against the president of the CEDOCUT and incumbent president of the FUT following his participation in protests, and the lack of social dialogue on proposed labour reforms

1. 274. The complaint is contained in a communication dated 5 February 2020 sent by the Ecuadorian Confederation of United Workers’ Organizations (CEDOCUT) and the United Workers’ Front (FUT).
2. 275. The Government of Ecuador sent its observations on the allegations in a communication dated 24 April 2020.
3. 276. 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. The complainants’ allegations

1. 277. In their communication dated 5 February 2020, the CEDOCUT and the FUT denounce the criminal proceedings brought against Mr Manuel Mesías Tatamuez Moreno, president of the CEDOCUT and incumbent president of the FUT, following the protests that took place in the country between 3 and 13 October 2019. They also denounce the lack of social dialogue on the labour reforms proposed by the Government.
2. 278. The complainant organizations state that, in October 2019, the President of Ecuador, by Executive Decree No. 883, abolished fuel subsidies, which led to a hike in the price of  “extra” petrol – the most widely used type of petrol in the country – of just over US$0.50 per gallon.
3. 279. The complainant organizations state that the transport workers’ union called a strike, blocking highways and roads across the country, which triggered a series of protests in Ecuador, during which there were clashes between the police, who were trying to maintain public order, and thousands of protesters outraged by the economic measures that had a serious impact on their daily lives. They state that hundreds of indigenous communities and workers descended on Quito as the days went by to gather at these protests.
4. 280. The complainant organizations further state that: (i) in April 2019, before the introduction of the above-mentioned economic measures under Executive Decree No. 883, the Government had announced a package of labour reforms to enhance flexibility, including the creation of a new type of contract (the entrepreneurship contract), and the scrapping of the employer’s pension scheme, to be replaced by a monthly contribution corresponding to time worked; (ii) the Government had held a dialogue on this package of reforms only with organizations that were supportive of its policies, with no regard for the leaders of the country’s main trade union confederations; (iii) this situation was compounded by the instability felt by public sector employees as a result of the use of occasional service contracts; and (iv) because of the lack of dialogue, the trade union confederations had planned a national strike in April 2019 as a means of applying pressure in order to get the Government’s attention.
5. 281. The complainant organizations claim that, in the above-mentioned context, and in view of the economic measures adopted by the Government with the support of the International Monetary Fund, social sectors, indigenous organizations, trade unions and transport organizations held demonstrations in October 2019, leading to a national strike. Referring to a report by the Inter-American Commission on Human Rights, which found that excessive force was used by the security forces in keeping the protests under control, the complainant organizations claim that there were widespread clampdowns during the national strike and that many people were killed in clashes between protesters and the Ecuadorian police, and hundreds were injured and arrested.
6. 282. The complainant organizations state that Ecuador faced a serious crisis and that the Government declared a state of emergency throughout the country in response to the protests. They allege that the President of the Republic, despite initially refusing to engage with the organizations, had no choice but to enter into dialogue under the auspices of the United Nations and end the conflict by repealing Executive Decree No. 883 and introducing other measures, of benefit to the whole country. In this regard, they refer to the role played by the trade union confederations in calling for dialogue with the Government.
7. 283. The complainant organizations allege that, after the conflict, the Government disregarded the agreements reached under the auspices of the United Nations and filed a criminal complaint against the leaders of the October 2019 movement – both union leaders and indigenous leaders – for the kidnapping of public forces on public premises where an indigenous hearing was being held, attended by thousands of people, including union leaders who went to show their support for the objectives of the national strike that had been called before the month of October.
8. 284. The complainant organizations specifically claim that Mr Manuel Mesías Tatamuez Moreno, president of the CEDOCUT and incumbent president of the FUT, received an official request for information, dated 24 October 2019, in relation to the above-mentioned criminal complaint. They also report that, on 7 January 2020, Mr Tatamuez Moreno was summoned to the Prosecutor’s Office to give his version of events. He stated that he had not been involved in any kidnapping, and neither had he been aware of any intention to kidnap any police officer or journalist at that location, but that he had taken part in a peaceful demonstration. According to the complainant organizations, the aim of this action by the Government is to stop trade union leaders from fighting against labour reform policies in the country, which constitutes an anti-union act that is contrary to the provisions of Articles 1, 8 and 11 of Convention No. 87 and Articles 1, 2 and 4 of Convention No. 98. They claim that the Government has breached these Conventions by interfering in the criminal justice system with a view to restricting, through fear and intimidation, the exercise of trade union rights in general and the freedom of expression of trade union confederations in particular.
9. 285. The complainant organizations further allege that the Government has failed to fulfil its obligation to facilitate communication between the social partners in relation to the proposed labour reforms. In this regard, the complainant organizations: (i) claim that the Government held meetings to validate State policies only with trade unions associated with public enterprises that are dependent on the State, without any representation of workers in the private sector and that, consequently, there is not a climate of social dialogue; and (ii) request to be informed of the proposed labour reforms before their imminent submission to the National Assembly.

B. The Government’s reply

1. 286. In its communication dated 24 April 2020, the Government states that the present complaint bases its arguments largely around the issuance of Executive Decree No. 883 of 1 October 2019. It states that this Decree was issued because there was a clear need to reform the Substitute Regulations on the regulation of the price of hydrocarbon derivatives in accordance with the economic decisions adopted by the Government of Ecuador, which were aimed at setting new fuel prices to reflect the economic circumstances of the country in order to safeguard the interests of the State and prevent fuel smuggling. The Government states that it is a well-known fact that the adoption of this decision led to a series of demonstrations against the measure.
2. 287. The Government reports that, as a result, on 3 October 2019, by Executive Decree No. 884, the President of Ecuador declared a nationwide state of emergency on account of the circumstances of serious domestic unrest, as the blockades in various parts of the country had disturbed public order by impeding normal vehicular traffic, leading to outbreaks of violence that jeopardized the security and safety of individuals. In accordance with the provisions of section 1 of that Executive Decree, it also warned of a possible radicalization of the mobilizations throughout the national territory, as the various groups were continuing to call for ongoing protests of indefinite duration.
3. 288. The Government explains that section 3 of Executive Decree No. 884 suspended the right to exercise freedom of association and assembly throughout the national territory, strictly on grounds related to the state of emergency and State security, in accordance with the principles of proportionality, necessity and appropriateness, and in strict compliance with other constitutional guarantees. The Government reports that this suspension involved the restriction of gatherings in public spaces at any time of day in order to prevent the rights of other citizens from being violated.
4. 289. The Government also indicates that, as a result of the protests that lasted for several days in the country and the dialogue between the Government and the leaders of the Confederation of Indigenous Nationalities of Ecuador, the Ecuadorian Council of Evangelical Indigenous Peoples and Organizations, and the Confederation of Peasant, Indigenous and Black Organizations, the President of Ecuador, by means of Executive Decree No. 894 of 14 October 2019, decided to rescind Executive Decree No. 883, which led to the end of the demonstrations that had taken place in Ecuador.
5. 290. On this point, the Government states that the Committee, in accordance with its own decisions, is not competent to deal with allegations of a purely political nature and that, in the present case, there is no evidence of violation of the labour or trade union rights of any member of the CEDOCUT or the FUT.
6. 291. Regarding the supposed plan mentioned by the complainant organizations to promote precarious employment, the Government emphasizes that: (i) one of the policies that is planned by the Government and is aimed at promoting employment is the introduction of a type of entrepreneurship contract for newly established businesses, which would include all the labour rights that are already recognized for workers, with a view to boosting employment in Ecuador; (ii) the employer’s pension would be maintained, as the State is the guarantor of rights; and (iii) occasional service contracts are part of the labour system established under the Organic Law on the Public Service since the publication of that law on 6 October 2010 and are a type of contract to cater for non-permanent institutional needs in the public sector.
7. 292. The Government goes on to state that the proposed labour reforms mentioned by the complainant organizations have not been submitted to the National Assembly of Ecuador and that social dialogues have been held on an ongoing basis with various actors in the employer and worker sectors, involving representatives of both employers and workers and including the CEDOCUT and the FUT. It claims that the complainant organizations are expressing their disagreement only because the proposals have not been formally shared with their representatives, which does not represent the reality of the situation, as the Ministry of Labour held working groups, including with the complainant organizations, and has publicized the proposals through the media.
8. 293. The Government adds that, since the complainant organizations’ allegations refer to draft legislation that has no legal force, the Committee has not got sufficient grounds to pronounce itself on this matter. The Government further states that the complainant organizations’ allegations do not reflect the reality of the labour reforms led by the Ministry of Labour. The Government indicates that, in an effort to enhance employment promotion in order to reduce rates of unemployment and underemployment, it analyzed certain proposals at the time. However, it reiterates that these proposals were not submitted to the National Assembly.
9. 294. With regard to the prosecutor’s investigation into the allegations of kidnapping made against Mr Tatamuez Moreno, the Government stresses that, under the constitutional rule of law, the branches of government are duly separated and independent. Accordingly, the Prosecutor-General’s Office is responsible for public prosecution proceedings, especially when the offence is reported in a complaint filed under section 421 of the Basic Comprehensive Penal Code (COIP).
10. 295. The Government states that, based on the submission of the complainant organizations, it is apparent that the Prosecutor-General’s Office, in accordance with its remit and powers, is conducting a preliminary investigation into the events that took place in the context of the social protests of October 2019 in order to gather evidence, either incriminatory or exculpatory, that will allow the prosecutor to decide whether or not to bring charges. According to the Government, it appears that Mr Tatamuez Moreno has been notified in order to give a voluntary and unsworn deposition, as a person who can shed light on the facts, in accordance with section 582 of the COIP. It reports that, for these reasons and in accordance with the provisions of section 584 of the COIP, the preliminary investigation will have confidential status.
11. 296. The Government specifies that giving a statement before a duly appointed prosecutor does not mean that a person is under suspicion or being prosecuted. It also states that, without prejudice to the above, the Government has been a guarantor of rights to freedom of association, which are completely unrelated to a complaint being pursued for the alleged offence of kidnapping.
12. 297. With regard to the Articles of Conventions Nos 87 and 98 invoked by the complainant organizations, the Government states that the complainant organizations mistakenly argue that there has been interference by the Government in the criminal investigation. It maintains that there is no evidence to suggest that any action has been taken that constitutes a violation of Mr Tatamuez Moreno’s rights on account of his status as a trade union leader. It also states that it is perfectly clear that the Government has not undermined trade union rights through national legislation.
13. 298. The Government concludes by reiterating that the claims of the complainant organizations do not concern violations of trade union rights and that, on the contrary, they are based purely on political aspects that are beyond the Committee’s remit.

C. The Committee’s conclusions

1. 299. The Committee takes note that, in the present case, the complainant organizations denounce the opening of criminal proceedings against the president of the CEDOCUT and incumbent president of the FUT, following his participation in a public gathering in the context of popular protests, and the lack of social dialogue on proposed labour reforms in the country.
2. 300. The Committee takes note of the timeline of events provided both by the Government and by the complainant organizations, namely: in April 2019, the Ministry of Labour held talks with a number of actors in the employer and worker sectors regarding proposed labour reforms, and the FUT planned at that time to hold a national strike as a means of applying pressure in order to get the Government’s attention in view of the Ministry’s alleged lack of social dialogue to work together in respect of these reforms. On 1 October 2019, the Government issued Executive Decree No. 883 to reform the Substitute Regulations on the regulation of the price of hydrocarbon derivatives, leading to a hike in fuel prices. In response to this decree and other measures adopted by the Government, a series of protests took place between 3 and 13 October 2019. On 3 October 2019, on account of the circumstances of serious domestic unrest and blockades in various parts of the country, the President of Ecuador declared a nationwide state of emergency by Executive Decree No. 884, which suspended the exercise of the right to freedom of association and assembly. On 14 October 2019, following a dialogue facilitated by the United Nations, the Government repealed Executive Decree No. 883 through Executive Decree No. 894, putting an end to the demonstrations. After the conflict, a criminal complaint was filed against several leaders of indigenous organizations and against Mr Tatamuez Moreno, president of the CEDOCUT and incumbent president of the FUT, for the kidnapping of public forces on public premises. On 24 October 2019, Mr Tatamuez Moreno received a request for information as part of the preliminary investigation conducted by the Prosecutor-General’s Office. On 7 January 2020, he was summoned to the Prosecutor’s Office and gave his version of events.
3. 301. The Committee notes, first of all, the Government’s assertion that the claims of the complainant organizations are based purely on political aspects that are beyond the Committee’s remit, and that the complaint does not give any reasons that would make it possible to establish that the labour and trade union rights of any member of the CEDOCUT or the FUT have been violated. While noting that the text of the complaint submitted contains general assessments of Government policy, the Committee observes that: (i) the protest actions in which the workers’ organizations took part and as a result of which criminal proceedings were brought against Mr Tatamuez Moreno concerned measures likely to affect the interests of workers in the transport sector and the standard of living in other sectors; and (ii) the specific allegations in the present case (criminal proceedings considered to be intimidating against a trade union leader and an alleged lack of consultation with the complainant organizations on proposed labour reforms) concern respect for freedom of association. The Committee will therefore focus its attention on the examination of these allegations.
4. 302. With regard to the filing, on 24 October 2020, of a criminal complaint against the president of the CEDOCUT and incumbent president of the FUT for the kidnapping of public forces on public premises, the Committee notes that the complainant organizations state that: (i) Mr Tatamuez Moreno did not participate in any kidnapping nor was he aware of any intention to kidnap any police officer or journalist; and (ii) the criminal proceedings against Mr Tatamuez Moreno are related to his presence at a meeting attended by many participants and at which the trade union organizations, in defence of their demands, lent their support to the indigenous organizations. The Committee notes that the complainant organizations allege in particular that: (i) there is interference by the Government in the criminal proceedings against Mr Tatamuez Moreno; and (ii) the aim of such interference is to stop trade union leaders from fighting against labour reform policies in the country. The Committee notes that the Government, for its part, indicates that, under the constitutional rule of law, the branches of government are duly separated and independent, and that there has been no interference on its part in the criminal investigation by the Prosecutor-General’s Office into the events that took place in the context of the social protests of October 2019. It also notes that the Government maintains that giving a statement before a duly appointed prosecutor does not mean that a person is under suspicion or being prosecuted, and that there has been no action that has violated Mr Tatamuez Moreno’s rights because of his status as a trade union leader. The Committee takes due note of these points. The Committee notes that the above-mentioned criminal complaint relates to Mr Tatamuez Moreno’s participation in a demonstration in the context of the October 2019 protests. Observing that no details have been provided of the specific facts that gave rise to the complaint, the Committee recalls that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising protest action and that, while persons engaged in trade union activities or holding trade union office cannot claim immunity in respect of the ordinary criminal law, the arrest of, and criminal charges brought against, trade unionists may only be based on legal requirements that in themselves do not infringe the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 224 and 133]. The Committee therefore requests the Government to keep it informed of the outcome of the investigation into the criminal complaint brought against Mr Tatamuez Moreno and trusts that, in the context of the examination of that complaint, the competent authorities will take full account of the above-mentioned decisions on freedom of association.
5. 303. With regard to the alleged lack of social dialogue on the proposed labour reforms of April 2019 concerning the creation of a new type of contract (the entrepreneurship contract) and the employer’s pension scheme, the Committee notes that the complainant organizations: (i) allege that the Government had held a dialogue on this package of reforms only with organizations that were supportive of its policies, with no regard for the leaders of the country’s main trade unions; and (ii) request to be informed of the proposed labour reforms before their imminent submission to the National Assembly. The Committee notes that, for its part, the Government states that: (i) the Ministry of Labour held working groups, including with the complainant organizations, and publicized the proposals through the media; (ii) the proposed reforms were not submitted to the National Assembly; and (iii) the Committee does not have sufficient grounds to comment on proposed reforms, which do not have legal force, and in respect of which the complainant organizations have not submitted precise and detailed allegations, but rather arguments that do not reflect the reality of the labour reforms led by the Ministry of Labour.
6. 304. While recalling that when it has had to deal with precise and detailed allegations regarding draft legislation, the fact that such allegations relate to a text that does not have the force of law should not in itself prevent it from expressing its opinion on the merits of the allegations made [see 376th Report, Case No. 2970, para. 465], the Committee observes that, in the present case, the specific allegations made by the complainant organizations do not refer to the contents of the proposed labour reforms but rather to the alleged lack of social dialogue on the proposed reforms.
7. 305. In this regard, the Committee notes the contradictory accounts of the complainant organizations and the Government on the holding of consultations. The Committee also recalls that it has drawn the attention of governments to the importance of prior consultation of employers and workers organizations before the adoption of any legislation in the field of labour law [see Compilation, para. 1540]. Observing that the aspects of the proposed labour reforms relating to the entrepreneurship contract led to the creation of a special system for the recruitment of staff for entrepreneurial work through the Organic Law on Entrepreneurship and Innovation, published on 28 February 2020, the Committee trusts that the Government will ensure that any labour reforms proposed in the future will be prepared in consultation with all the representative organizations of workers and employers concerned.
   • The Committee’s recommendations
8. 306. 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 the outcome of the examination of the criminal complaint brought against Mr Manuel Mesías Tatamuez Moreno and trusts that, in the context of the examination of the above-mentioned complaint, the competent authorities will take full account of the decisions on freedom of association referred to in the conclusions of this case.
   • (b) The Committee trusts that the Government will ensure that any labour reforms proposed in the future will be prepared in consultation with all the representative organizations of workers and employers concerned.