Effect given to the recommendations of the committee and the Governing Body - Report No 404, October 2023

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

Effect given to the recommendations of the committee and the Governing Body

1. 33. The Committee last examined this case, which concerns allegations of violations of freedom of association and collective bargaining in the public sector, at its June 2017 meeting [see 382nd Report, paras 97–99]. On that occasion, the Committee again urged the Government to: (i) keep it informed of any developments regarding the return of union dues to the members of the National Federation of Workers of the State Petroleum Enterprise of Ecuador (FETRAPEC); (ii) promote without delay the commencement of discussions between FETRAPEC and the company with a view to reinstating the dismissed trade union leaders, Mr Edgar de la Cueva, Mr Ramiro Guerrero, Mr John Plaza Garay and Mr Diego Cano Molestina; (iii) take the necessary measures to ensure that an independent investigation is conducted into the alleged mass anti-union dismissals that took place at the E.P. PETROECUADOR enterprise in 2009 and 2010; (iv) inform it of the outcome of the criminal proceedings against the workers who participated in a work stoppage at the Unit for the Generation, Distribution and Commercialization of Electrical Energy of Guayaquil (Unidad Eléctrica de Guayaquil) (hereafter the electricity company); and (v) continue promoting dialogue with the representative trade union organizations. On that occasion, the Committee invited the Government to be more cooperative in the future.
2. 34. The Government sent information in communications dated 22 October 2018 and 6 March 2020. With regard to the return of trade union dues to FETRAPEC members, the Government recalls in its communication of October 2018 the legislation applicable to the issue of the payment of trade union dues and states in particular that it is the exclusive power of employers, at the request of the labour organization (FETRAPEC), to withhold or deduct these values from the remuneration of workers and deliver them directly to the beneficiary union, following for this purpose the provisions of the Law on the Financing of Trade Union Confederations.
3. 35. With regard to the reinstatement of the dismissed trade union leaders, Messrs Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego Cano Molestina, the Government reiterates in its 2018 communication that the workers were subject to a despido intempestivo [immediate dismissal] and that they had signed their severance agreements and received the compensation provided for in such a case, which demonstrated their acceptance of their dismissal. In its 2020 communication, the Government indicates that: (i) by means of a communication dated 20 September 2017, the public enterprise Petroecuador (hereafter the oil company) stated that the legislation applicable to public enterprises does not provide for reinstatement; (ii) on 31 May 2019, the aforementioned trade union leaders brought an action for non-compliance before the Constitutional Court of Ecuador with a view to obtaining their reinstatement and that this action was declared admissible; and (iii) pending the Court's judgment on the merits, it is not for the Government to pronounce on this case.
4. 36. In relation to the request for an independent investigation into the alleged mass anti-union dismissals at the oil company in 2009 and 2010, the Government describes the provisions of the Labour Justice Act, which entered into force in 2015, concerning protection against anti-union discrimination. With regard to the outcome of criminal proceedings concerning workers who participated in a work stoppage at the electricity company, the Government states in its 2018 communication that while the Ministry of Labour is not the competent entity to provide information on criminal proceedings, it has nevertheless requested information in this regard from the National Council of the Judiciary. Finally, the Government states that social dialogue with representative organizations of employers and workers is one of the axes of the Government’s policy.
5. 37. Subsequent to the information provided by the Government and by means of communications dated 12 November 2021 and 5 March 2022, the complainant organization sent, for its part, additional information on the situation of the trade union leaders dismissed in 2008, Messrs Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego Cano Molestina. In its communication of 12 November 2021, the complainant organization states that, by means of a judgment of 29 September 2021, following the action for non-compliance brought by the aforementioned trade union leaders, the Constitutional Court ordered: (i) compliance with the Committee’s recommendations regarding the reinstatement of the aforementioned trade union leaders; (ii) payment of an amount of US$5,000 as non-pecuniary reparation; and (iii) the Ecuadorian State to make a public apology. In its submission of 5 March 2022, the complainant organization states that: (i) following the ruling of the Constitutional Court, Mr Edgar de la Cueva, Mr Ramiro Guerrero and Mr Diego Cano Molestina returned to the jobs they had held in 2008, while Mr John Plaza Garay was still in the process of taking steps to remove an impediment to holding public office due to debts owed to the tax authorities that he had to assume jointly and severally as legal representative of his trade union organization, the Single Enterprise Committee of Workers of Petroecuador (CETAPE); (ii) despite the requests of the trade union leaders, the aforementioned return to work has not been formalized with a reintegration act, which prevents the workers from being paid the remuneration they stopped receiving since 2008 and the social security rights they are entitled to so that they can have a dignified retirement. Based on the above, the complainant organization requests that the four union leaders be recognized and awarded full reparation for the damage caused by their anti-union dismissal and the delay (13½ years) in reinstating them into their jobs.
6. 38. The Committee takes note of the information provided by the complainant organization and by the Government concerning the situation of the four FETRAPEC leaders dismissed in 2008. The Committee takes note of the information provided in 2020 by the Government concerning the initiation of an action in compliance with the Constitutional Court by the aforementioned trade union leaders. The Committee notes in this respect the subsequent information provided by the complainant organization on the judgment handed down in this respect by the Constitutional Court on 29 September 2021 in favour of the reinstatement of the trade union leaders. In this respect, the Committee notes with interest that, following the aforementioned judgment, three of the four trade union leaders of FETRAPEC have returned to the jobs they held before their dismissal in 2008, while the return of the fourth is being arranged. The Committee also notes that the complainant organization claims that this return does not at this stage constitute reinstatement, since it has not been accompanied by the payment of lost wages and social security entitlements, and therefore requests full compensation for the damage caused by the dismissal of the four leaders. The Committee recalls that it has considered that if it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay [Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1169]. On the basis of the above, and while noting that it has not received information from the Government concerning the above-mentioned Constitutional Court judgment and its implementation, the Committee requests the Government to facilitate without delay the holding of discussions between FETRAPEC and the oil company with a view to the effective reinstatement of the fourth trade union leader (Mr Garay) and the determination of an equitable solution for the wages not received and social security entitlements of the four FETRAPEC leaders dismissed in 2008. The Committee requests the Government to keep it informed in this respect.
7. 39. With regard to its other recommendations, the Committee regrets to note that, despite the many years that have elapsed since the events at issue in the present case, the Government has not reported on specific actions taken to resolve the issues still outstanding and has not provided certain long-standing requests for information. The Committee is therefore once again compelled to urge the Government to: (i) keep it informed about the return of trade union dues to FETRAPEC members; (ii) take the necessary steps to ensure that an independent investigation is carried out into the alleged mass anti-union dismissals at the oil company in 2009 and 2010; and (iii) inform it of the outcome of the criminal proceedings concerning the workers who participated in a work stoppage at the electricity company.