Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 190) sur la violence et le harcèlement, 2019 - Equateur (Ratification: 2021)

The Committee notes the Government’s very detailed first report. It wishes to recall that the Convention has a broad scope of application and aims to protect all persons referred to in its Article 2, and not only women, against violence and harassment in the world of work.

The Committee welcomes all the measures taken in the country, which demonstrate a commitment to eliminating violence and harassment in the world of work. In particular, it welcomes the following measures taken to implement the Convention: (1) the existence of legislative provisions requiring employers to adopt measures to prevent diverse forms of violence and harassment (Ministerial Agreement No. 2020-244, Labour Code and Organic Law to Promote the Violet Economy) (Article 9 of the Convention); (2) the measures to take into account violence and harassment in the management of occupational safety and health, including through the Psychosocial Risk Prevention Programmes and the Occupational Risk Prevention Plans required by law (Articles 9(b) and (c) of the Convention); (3) the provision of various mechanisms for remedies (such as compensation, recovery of employment or public apologies) and sanctions (Articles 10(b) and (d) of the Convention); and (4) the provision of privacy and confidentiality mechanisms in legislation and protocols for action (Article 10(c) of the Convention).

The Committee notes the observations provided by Public Services International (PSI) Ecuador, the United Front of Workers (FUT) and the Federation of Petroleum Workers of Ecuador (FETRAPEC), received by the Office on 31 August 2023. The Committee asks the Government to provide its comments in this respect.

General. Legal framework. The Committee takes note of: (1) the wide range of laws, regulations, directives, ministerial agreements and policies to which the Government refers to in its report and that cover various forms of violence and harassment in the world of work; (2) the binding of the State by a number of international treaties covering some aspects of the Convention, such as the Convention on the Prevention, Eradication and Punishment of Violence against Women (Convention of Belem do Para), which allows for a higher threshold of protection due to the application of the pro persona principle; (3) the Government's indication that the necessary reforms to apply the Convention are under consideration, including a number of legislative amendment initiatives that are under way. The Committee observes in particular that the Protocol for the Prevention and Resolution of Cases of Discrimination, Harassment at Work and/or Any Form of Violence against Women in Workplaces, established by Ministerial Agreement No. MDT-2020-244 (hereinafter the Prevention and Resolution Protocol), is relevant for the implementation of various Articles of the Convention, and according to the Government, it applies to both men and women despite the wording of its title. To ensure legal certainty and effective protection against violence and harassment, the Committee requests the Government to provide information on any measures envisaged to amend Ministerial Agreement No. MDT-2020-244 and the Prevention and Resolution Protocol as appropriate to clarify that both the Agreement and the Protocol are, as the Government indicates, applicable to both men and women. The Committee also requests the Government to provide information on the progress made on the various legislative processes under way, and it hopes that this will allow, as far as possible, the full alignment of legislation with the provisions of the Conventions.

Articles 1, 4(2) and 7 of the Convention. Definition and prohibition of violence and harassment in the world of work. The Committee observes that a number of legal provisions refer to various behaviours and practices that could cover forms of violence and harassment in the world of work, although none of them covers the full range of forms covered by the Convention. The Government refers to section 46 of the Labour Code and to section 24 of the Basic Act on the Public Service (LOSEP), which define “harassment at work” as “any behaviour that threatens the dignity of a person, which is repeated and potentially injurious, committed in the workplace or at any time against one of the parties to the employment relationship or between workers, and which results in the person concerned being harmed, mistreated, humiliated, or which threatens or harms his or her employment status”. Furthermore, certain behaviours that could amount to violence and harassment in the world of work are prohibited under the Standard for the Eradication of Labour Discrimination (Ministerial Agreement No. MDT-2017-0082), such as intimidation, harassment, physical and/or verbal aggression, and defined in the Basic Comprehensive Penal Code, such as the offences of theft, harassment, acts of hatred and discrimination. The Committee also notes with interest that a number of legislative provisions referred to by the Government address forms of violence and harassment related to prohibited grounds of discrimination: (1) With reference to section 11(2) of the Constitution, the Labour Code and the LOSEP cover harassment at work based on several prohibited grounds of discrimination; (2) the Standard for the Eradication of Labour Discrimination in the Workplace covers acts committed on the basis of “gender identity, sexual orientation, age, disability, living with HIV/AIDS, ethnicity, having or developing a catastrophic illness, language, religion, nationality, place of birth, ideology, political opinion, migratory status, marital status, judicial background, aesthetic stereotypes, pregnancy and breastfeeding” (sections 2 and 6); and (3) the Basic Act on the Right to Human Care includes measures to prevent and eliminate harassment and violence against public and private sector workers exercising the right to care (sections 1 and 36).

The Committee notes that, in their observations, PSI Ecuador, the FUT and the FETRAPEC indicate that national legislation and practice disregard violence at work and exclude behaviours that are not repeated but that constitute harassment at work. The Committee requests the Government to clarify, with respect to the definition of "harassment at work" contained in the Labour Code and the LOSEP whether the expression "harmed, mistreated, humiliated, or which threatens or harms his or her employment status" includes physical, psychological, sexual or economic harm in accordance with Article 1(1)(a) of the Convention. The Committee also requests the Government to indicate whether the various provisions mentioned above would cover acts of harassment which, as a single occurrence, aim at, result in, or are likely to result in harm.

Definition and prohibition of gender-based violence and harassment in the world of work. The Committee notes the Government’s indication that: (1) the Comprehensive Basic Act to Prevent and Eradicate Violence against Women (LOIPEVM) defines “gender-based violence against women” in various forms, such as “physical”, “psychological” (including harassment), “sexual” (including sexual harassment), “economic and property-related” and “symbolic” violence; (2) with reference to section 11(2) of the Constitution, the concept of “harassment at work” provided for in the Labour Code and the LOSEP includes harassment on the basis of sex, gender identity and sexual orientation against all persons; (3) the Basic Comprehensive Penal Code criminalizes “sexual harassment” and “offences involving violence against women” (sections 166 and 159); and (4) the standardized format of the Workplace Regulations, applicable to employers with more than 10 workers, defines sexual harassment (section 51). The Committee also observes that the Standard for the Eradication of Labour Discrimination in the Workplace covers acts committed against all persons on the basis of gender identity, sexual orientation, pregnancy and breastfeeding.

The Committee observes that these provisions define a number of the forms of gender-based violence and harassment covered by Article 1(1)(b) of the Convention. In this respect, the Committee notes that the definition of “sexual harassment” contained in the Basic Comprehensive Penal Code only covers the "solicitation of acts of sexual nature" by a person who "takes advantage of his or her position of authority at work", and that the definition provided in the standard Workplace Regulations, while broader, is only applicable to employers with more than 10 workers. The Committee recalls that sexual harassment includes both sexual harassment that assimilates to blackmail (“quid pro quo”) and sexual harassment arising from a hostile work environment, and that it is necessary to cover sexual harassment that is perpetrated by a person in a position of authority, a colleague, a subordinate or by a person with whom workers have contact as part of their job (a client, supplier, etc). The Committee also recalls that penal law provisions are not entirely appropriate for this issue as, inter alia, they do not always provide for remedies for victims and are unlikely to address all behaviours constituting sexual harassment (see CEACR General Survey of 2023 on achieving gender equality at work, paragraphs 112–117). The Committee refers to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) in this regard.

Articles 2 and 3. Scope. The Government refers to several provisions with different scopes, indicating that all persons referred to in Article 2 of the Convention are protected. The Government indicates, inter alia, that: (1) dismissed persons, self-employed workers, volunteers and persons working in the informal economy are covered by legislation of a general scope, such as the LOIPEVM for violence against women, and civil and penal liability regulations; (2) a reform of the LOSEP is under consideration to establish a complaint mechanism accessible to dismissed public servants; and (3) a draft bill on social action and volunteering is being prepared, whose section 4(d) includes the right of volunteers to be treated equally and without discrimination, respecting their freedom, dignity, privacy and beliefs. The Committee requests the Government to provide information on (i) whether the LOSEP reforms are intended to cover all dismissed public servants, and (ii) any progress made in the adoption of draft bills and legislative reforms that are under way.

Article 4(2). Inclusive, integrated and gender-responsive approach. The Committee notes the information provided by the Government and welcomes the efforts made for the prevention and elimination of violence and harassment in the world of work. The Committee observes that: (1) a number of procedural law provisions provide for access to translation and interpretation where necessary; and (2) the LOIPEVM provides for the right of women to receive information accessible in their language and for language accommodation in case of disability (section 9(4) and (5)). The Committee also notes that PSI Ecuador, the FUT and the FETRAPEC indicate that there is a lack of consultation with workers’ organizations on measures relating to the application of the Convention, and that the draft bills include provisions for such consultation in the public sector only. The Committee requests the Government to indicate whether further measures are envisaged to ensure that the tools, guidance and activities undertaken in respect of other forms of violence and harassment in the world of work are provided in accessible formats as appropriate.The Committee also requests the Government to provide information on consultations with employers’ and workers’ organizations that have taken place or are envisaged regarding the application of the Convention.

Articles 5 and 6. Fundamental principles and rights at work. The Committee notes the observations of PSI Ecuador, the FUT and the FETRAPEC, in which they express their concern about cases of labour, economic and sexual exploitation of children and adolescents, and cases of serfdom and forced labour. The Committee notes the relevance of this information to the Forced Labour Convention, 1930 (No. 29) and the Worst Forms of Child Labour Convention, 1999 (No. 182) and will examine it more specifically within those frameworks. The Committee also notes the indications provided by the Government on the legislative and policy measures taken to promote equality and non-discrimination in employment and occupation, and refers in this respect to its comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

Article 8. Appropriate prevention measures. The Committee notes the Government’s reference to the wide range of steps taken to prevent violence and harassment in the world of work, through legislative measures, occupational safety and health measures, equality and violence prevention policies, and awareness-raising and training. With regard to the informal economy, the Government indicates that: (1) strategies are being implemented to disseminate the regulations governing the exercise of economic activities in public spaces; (2) steps are being taken to promote the regularization of informal economy traders; and (3) disciplinary sanctions for the infringement of the rights of self-employed workers and retailers act as a deterrent to violence on the part of public servants responsible for control. The Government also recognizes that domestic work is one of the sectors most affected by violence and harassment, and indicates that information (“support pathways”) and awareness-raising efforts (the My Rights Your Rights campaign) have been made to ensure that domestic workers know their rights and the steps to take in case of violence and other infringements of their rights. The Committee notes this information concerning domestic work and refers, in this respect, to its comments on the application of the Domestic Workers Convention, 2011 (No. 189). The Committee also notes that PSI Ecuador, the FUT and the FETRAPEC note, in their observations, difficulties in identifying groups, sectors, conditions and work arrangements more exposed to violence and harassment, such as online work, semi-face-to-face work and platform work. The Committee requests the Government to provide information on: (1) any measures aimed at raising the awareness of and training public servants to identify, prevent and deal with cases of violence and harassment against workers in the informal economy; and (2) the protection measures or mechanisms available to workers in the informal economy in cases of violence and harassment in the world of work. The Committee also requests the Government to provide information on the measures taken to identify, apart from domestic work, other sectors, occupations and work arrangements that may be more exposed to violence and harassment.

Article 9(a). Workplace policy. The Government reports that: (1) every employer is required to adopt the Protocol for the Prevention and Resolution of Cases of Discrimination, Harassment at Work and/or Any Form of Violence against Women in Workplaces (Ministerial Agreement No. 2020-244) according to the guidelines of the Ministry of Labour, which includes initiatives for the prevention and handling of cases depending on the size of the enterprise; (2) every employer with more than 10 workers is required to adopt workplace regulations that must be approved by the competent authority, may be amended or revised at the request of a percentage of workers, and must follow a standardized format that includes a chapter on harassment and discrimination. The Committee requests the Government to provide information on the manner in which it is ensured that workers and their representatives participate in the elaboration and adoption of protocols and regulations regarding violence and harassment.

Article 9(d). Information and training. The Committee welcomes the fact that a number of legislative provisions establish the employer’s duty to provide information and training on the psychosocial risks identified and the measures taken for their prevention, as well as on the various measures, regulations and protocols adopted to prevent and deal with cases of violence and harassment. The Government further indicates that the monitoring and fulfilment of these initiatives is carried out through the Single Labour System and the various control inspections, and provides statistics on fulfilment in this regard. The Committee requests the Government to continue to provide information on employers' fulfilment of the information and training requirements.

Article 10(a) and (h). Monitoring and enforcement The Committee notes the information provided by the Government on the various institutions and authorities that are competent to monitor and verify the application of laws and regulations on violence and harassment in the world of work, to hear cases and complaints of infringement, and to monitor and evaluate the implementation of policies. The Government describes, in particular, the types of investigative activities that may be carried out by the labour inspectorate, and notes that the stoppage of work or closure of workplaces falls under the competence of the Ministry of Labour and Employment (section 436 of the Labour Code). The Government emphasizes that the reforms needed to bring secondary legislation into line with the provisions of the Convention are under consideration. The Committee recalls that, in its latest comments under Convention No. 81, it requested the Government to take measures to ensure that labour inspectors are empowered to take steps to eliminate threats to the health and safety of workers. The Committee requests the Government to provide information on: (i) the competence of the labour inspectorate to issue orders requiring measures with immediate executory force in cases of violence and harassment in the world of work; and (ii) the procedure followed for the application of section 436 of the Labour Code in practice. The Committee requests the Government to continue providing information on the number of cases of violence and harassment in the world of work brought to the attention of the labour inspectorate and other competent authorities, as well as on the sanctions imposed and remedies granted.

Article 10(b) and (e). Easy access to safe, fair and effective reporting and dispute resolution mechanisms and procedures. The Committee notes the extensive information provided by the Government on the range of mechanisms and procedures available for cases of violence and harassment in the world of work, including: (1) procedures internal and external to the workplace for lodging complaints and investigate cases of violence and harassment or initiating, on the basis of such facts, termination of an employment contract or sanction process; (2) possible recourse to courts and tribunals; (3) provisions to prevent retaliation against victims, complainants and respondents; and (4) the availability of legal, health and language assistance services, among others. The Committee notes from the statistical information provided by the Government that between 2021 and 2023, 828 complaints of harassment at work and discrimination in the private sector and 992 complaints in the public sector were filed with the Ministry of Labour (with one sanction involving a suspension in 2021 and two sanctions involving dismissal in 2022 in the public sector). The Government indicates that the grounds for dismissal of complaints in the public sector include, among others, the failure of any of the parties to attend the hearings, the lack of delegation by the requesting authority, or the late submission of documentation for the resolution of the procedure.

The Committee notes the indication of PSI Ecuador, the FUT and the FETRAPEC that: (1) the existence of several related but separate definitions of behaviours involving violence and harassment complicates the reporting, handling and resolution of cases, creating legal uncertainty for both the authorities responsible for their handling and the victims; and (2) in the private sector, a conciliation phase is established in the “clearance” procedure, which forces the victim to mediate with and face the aggressor after having already been questioned twice as part of the internal investigative procedures. The Commission recalls that Article 25 of the American Convention on Human Rights enshrines the right to a simple and prompt recourse for the protection of human rights. Noting the wide range of existing procedures for different cases of violence and harassment, the Committee requests the Government to inform on: (i) whether it has foreseen simplifying the procedures, so that all persons affected by violence and harassment in the world of work have access to an easy and fast recourse to defend their right to a world of work free from violence and harassment in line with the Convention, and (ii) the measures taken to provide clear and accessible information to employers and workers on the various reporting and dispute resolution claims and mechanisms available. The Committee also requests the Government to indicate whether provisions are in place to protect witnesses and whistle-blowers against retaliation, and to prevent victimization during investigative processes. Noting the statistics provided, the Committee requests the Government to: (i) provide detailed information on the application of the grounds for dismissal of complaints in the public sector, and on the measures taken to avoid situations of defencelessness; and (ii) continue to provide statistics on the number of complaints disaggregated, if possible, by sector, type of behaviour, and sex of the victim.

The Committee also notes with interest the Government’s indication that: (1) there are judges specialized in violence against women, prosecutors with gender expertise, as well as a number of protocols and technical standards on the handling of cases of gender-based violence for expert interpreters, translators and for security and health service personnel; (2) the LOIPEVM establishes administrative protection measures for cases of violence against women; and (3) the "clearance procedure" for harassment cases ("procedimiento de visto bueno" in Spanish, which is intended to determine whether an offence has been committed and may lead to the termination of the employment relationship) provides that, where a worker presents well-founded indications that he or she has suffered harassment at work, the employer is required to provide justification for the measures taken and their proportionality. The Committee notes the indication of PSI Ecuador, the FUT and the FETRAPEC that the standard of proof in the procedure established under the Standard for the Eradication of Labour Discrimination in the Workplace tends to disadvantage victims, as certain behaviours are rarely documented, such as comments on physical appearance during employment interviews. The Committee requests the Government to continue to provide information on the measures taken or envisaged to address cases of gender-based violence and harassment in the world of work directed against all persons.

Article 10(f). Domestic violence. The Government indicates that provision is made in legislation for female workers who are victims of domestic violence to be granted the necessary time to follow the judicial administrative measures established by the competent authority, without affecting their remuneration and leave (section 42 of the Labour Code and section 33 of the LOSEP). The LOIPEVM also provides for the right of women victims of violence not to be dismissed or subject to labour sanctions for absence from work due to their status as victims (section 9.22). The Government indicates that awareness-raising on domestic violence is being carried out and that this is expected to have an impact on the prevention of domestic violence. The Committee welcomes the measures taken, and requests the Government to provide information on their applicability to cases of domestic violence against all persons.

Article 10(g). Right to remove oneself from a work situation and the duty to inform management. The Government refers to the Andean Occupational Safety and Health Instrument, section 21 of which recognizes the right of workers to stop work when they have reasonable justification to believe that there is imminent danger to their safety or to the safety of other workers, without suffering any prejudice. The Government indicates that, together with other occupational safety and health agencies, a reform of the Regulations on occupational safety and health is under consideration. The Committee further observes that section 13 of the Regulations on occupational safety and health (Executive Decree No. 2393) establishes the requirement for a worker to “inform the employer of any breakdowns and hazards that could lead to occupational accidents”. The Committee requests the Government to indicate whether, in the event of removing him or herself from a work situation due to risks of violence and harassment, the worker concerned has a duty to inform the management.

Article 11(a). Addressing violence and harassment in relevant policies. The Committee notes the Government’s indication that: (1) violence and harassment are addressed through the prevention and elimination of psychosocial risks in the framework of occupational safety and health; (2) the 2020–30 National Plan to Prevent and Eradicate Violence against Women includes measures on sexual harassment, harassment at work and violence against women in the workplace; (3) The policy, “Purple Economy: for economic rights and a life free from violence for women”, promotes a life free from violence for women; (4) the 2021–25 National Agendas for Gender Equality, for Disability Equality, for Equality of Human Mobility, for Intergenerational Equality and for Equality for Indigenous Peoples include lines of action for a life free from violence; and (5) there is a 2019–30 Plan of Action against Trafficking in Persons in Ecuador. The Government also notes that foreign nationals have the same rights and duties as nationals. The Committee requests the Government to provide information on the measures taken under the various 2021–25 National Agendas for Equality that are specifically aimed at addressing violence and harassment in the world of work.

Article 11(b) and (c). Guidance and training tools and awareness-raising campaigns. The Government indicates, inter alia, that: (1) the Guide to Employment of Human Talent in Ecuador gives employers guidance on selection processes, including on discrimination, violence and harassment; (2) the training programme, Safe Institutions Free from Violence against Women, was conducted in 74 public sector entities, and the equivalent programme for the private sector is under preparation; (3) 26 enterprises in the private sector were certified in 2022 with the Safe Enterprise Free from Violence against Women seal; (4) a pilot plan to raise awareness of the Prevention and Resolution Protocol was carried out in public institutions receiving a high number of complaints, resulting in a subsequent decrease in the number of cases; (5) various training sessions were held for labour inspectors on discriminatory behaviour and on the protection of workers in contexts of human mobility; (6) guidelines have been drawn up on granting administrative protection measures under the LOIPEVM; (7) workshops on harassment at work and gender equality were held for various groups, along with a number of campaigns on discrimination and violence against women. The Committee requests the Government to continue to provide information on the guidelines, training tools and awareness-raising campaigns undertaken on violence and harassment in the world of work, including information on the level of participation of men and women in such initiatives.