Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 404, Octobre 2023

Cas no 3437 (Equateur) - Date de la plainte: 17-OCT. -22 - En suivi

Allegations: The complainant organization alleges that the Ministry of Labour has refused its registration as a trade union because it brings together workers from several enterprises

1. 350. The present complaint was submitted in a communication of 16 August 2022 from the Ecuadorian Digital Platform Workers’ Front (FRENAPP).
2. 351. The Government sent its observations in communications of 15 December 2022 and 12 September 2023.
3. 352. 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 complainant’s allegations

1. 353. In its communication of 16 August 2022, the complainant organization alleges that the Government has violated the ILO Conventions ratified by Ecuador on freedom of association and collective bargaining by refusing the trade union registration of FRENAPP. The trade union alleges in particular that: (i) on 8 November 2021, it submitted an application for registration to the Ministry of Labour in order to safeguard the rights of the 100,000-plus digital platform workers in the country who are not recognized as employees and who are subjected to highly precarious working conditions; (ii) by Official Letter No. MDT-DOL-2021-1817-O, the Ministry of Labour stated that the intention of the applicants is to establish a primary-level trade union of digital platform workers in Ecuador who do not have an employment relationship with the same employer, and therefore the application in question falls outside the scope of the Labour Code; (iii) in the aforementioned official letter, the Ministry of Labour referred to a ruling of 25 May 2021 (Case No. 17981-2020-02407) concerning the application for the registration of the Trade Union Association of Rural Banana Workers (ASTAC), in which the Criminal Chamber of the Pichincha Provincial Court instructed the Ministry of Labour to regulate the exercise of the right to freedom of association by branch of activity and to refrain from restricting or limiting the rights relating to freedom of association of other organizations applying for registration by branch of activity, under the same conditions and circumstances as those examined in this case; (iv) the official letter further stated that the Ministry of Labour has filed an appeal against this ruling and a recommendation was therefore made to FRENAPP to reapply once the appeal has been resolved; (v) noting that, by Ministerial Agreement No. MDT-2022-001 of 11 January 2022, the Ministry of Labour agreed to endorse and register the statutes of and grant legal status to ASTAC, on 9 May 2022 FRENAPP submitted in writing to the Ministry of Labour another request to register it as a trade union and to grant it legal status immediately, drawing attention to the aforementioned ruling of 25 May 2021; (vi) by Official Letter No. MDT-DOL-2022-0735-O of 23 August 2022, the Ministry of Labour reiterated its previous reply, again inviting FRENAPP to resubmit its request once the appeal filed by the Ministry of Labour against the ruling of 25 May 2021 has been resolved; and (vii) on 28 July 2022, an action for non-compliance was brought before the Constitutional Court of Ecuador against the Ministry of Labour, under Case No. 147-22-IS, which is under evaluation.
2. 354. The complainant organization further states that, on 11 October 2022, the Ministry of Labour also refused, on the same grounds, the registration of the branch-level Trade Union Association of Self-Employed Workers of the Ecosystems of the Marine Coastal Territories of the Ecuadorian Pacific (ASIMARMANGLAR) and that, on that occasion, the Ministry of Labour referred to Memorandum No. MDT-DAJ-2022-0925-M of 2 September 2022, in which it had issued a legal opinion regarding trade unions by branch of activity, stating that: “[...] the Ministry of Labour would not, by ministerial agreement, be able to regulate something that is not already prescribed by law. In other words, the Labour Code must be AMENDED”.

B. The Government’s reply

1. 355. In a communication of 15 December 2022, the Government, after recalling that the Constitution of Ecuador recognizes freedom of association, states that: (i) the content of the complaint is identical to the request made by the Ombudsman's Office concerning the registration of FRENAPP; (ii) the legislation does not provide for the possibility of establishing trade unions bringing together workers from several enterprises; (iii) the ruling of 25 May 2021 concerning the registration of the banana workers’ union ASTAC is applicable only to the parties concerned and its legal effect does not extend beyond those parties; and (iv) the aforementioned ruling was appealed by the Government and the matter is pending consideration by the Constitutional Court. The Government adds that section 459 of the Labour Code, which was amended by a 2018 decision of the Constitutional Court (Decision No. 2 of the Constitutional Court, published in the Official Journal, Supplement 40, of 6 April 2018), provides for the possible establishment of workers' associations by branch of activity, provided that the workers work in the same enterprise and not in different enterprises, since an employer–employee relationship is a precondition for the right to freedom of association. In the light of the foregoing, the Government states that the non-registration of FRENAPP is not contrary to freedom of association, which is safeguarded both by the Constitution of Ecuador and by Convention No. 87.
2. 356. In a communication dated 12 September 2023, the Government reiterates the various arguments set out above. In particular, the Government reiterates that: (i) in accordance with section 97 of the Organic General Procedural Code, the ruling of 25 May 2021 concerning the registration of the ASTAC banana workers’ union has binding effect only for the parties that instituted the proceedings; (ii) the part of the said ruling instructing the Ministry of Labour to regulate the exercise of the right to freedom of association by branch of activity would contravene the Constitution and the Ecuadorian legal system whose legislation restricts the registration of organizations of workers who do not belong to the same enterprise or share the same employer; and (iii) the said ruling is still under review by the Constitutional Court of Ecuador.

C. The Committee’s conclusions

1. 357. The Committee notes that the present case concerns the alleged refusal by the Ministry of Labour of the registration of FRENAPP, an organization whose purpose is to bring together the workers of the different digital platforms that exist in Ecuador. The Committee notes that the complainant organization specifically alleges that: (i) the Ministry of Labour, by its decisions of 28 December 2021 and 23 August 2022, refused the registration of FRENAPP on the grounds that it is seeking to bring together workers from several enterprises; (ii) the refusal of the registration of FRENAPP is contrary to the ruling of 25 May 2021 of the Pichincha Provincial Court relating to the application for the registration of another trade union, the banana workers' association ASTAC, which instructed the Ministry of Labour to regulate the exercise of the right to freedom of association by branch of activity and to refrain from restricting or limiting the rights relating to freedom of association of other organizations applying for registration by branch of activity; (iii) the Ministry of Labour invited FRENAPP to resubmit its application for registration once the Constitutional Court has handed down a decision on the ASTAC case; and (iv) in view of the above, FRENAPP brought an action for non-compliance before the Constitutional Court against the Ministry of Labour. The Committee notes that, for its part, the Government states that: (i) the national legislation, in particular the Labour Code, does not provide for the possibility of establishing trade unions composed of workers from several enterprises, since the existence of an employer–employee relationship is a precondition for freedom of association; and (ii) in accordance with the Organic General Procedure Code, the ruling of the Pichincha Provincial Court in the ASTAC case is limited in effect to the parties to the dispute in question and is the subject of an appeal before the Constitutional Court.
2. 358. The Committee observes that it is clear from the foregoing that the present case concerns the refusal of the registration of a trade union whose objective is to bring together workers from the different digital platforms that exist in the country. The Committee notes that both the complainant organization and the Government agree that the refusal by the Ministry of Labour of the registration of FRENAPP was based on the fact that the latter is seeking to bring together workers from different enterprises. The Committee recalls that Case No. 3148, which has given rise to two interim reports of the Committee [see 381st Report, March 2017, paras 420–442, and 391st Report, October 2019, paras 225–252], concerns the same issue, which in that case relates to the registration of ASTAC, a trade union in the country’s banana sector whose situation has been mentioned by both the complainant organization and the Government in the present case. The Committee recalls that, in the context of Case No. 3148, it requested the Government to: (i) take the necessary measures to ensure that national legislation complies with the principles of freedom of association concerning the minimum membership required to establish a trade union at the enterprise level and the possibility of setting up primary-level trade unions comprising workers from various companies; and (ii) to take the necessary measures to enable the registration of ASTAC without delay. The Committee also recalls that it referred the legislative aspects of that case to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) [see Case No. 3148, 381st Report, March 2017, paragraph 442].
3. 359. The Committee notes with regret that, despite its recommendations in the context of Case No. 3148 and the follow-up by the CEACR of the legislative aspects of the case, neither the country's legislation nor the practices of the Ministry of Labour yet allow for the establishment of primary-level trade unions composed of workers from different enterprises. The Committee recalls that this constraint is particularly detrimental to the exercise of freedom of association in view of the Labour Code of Ecuador, which requires a minimum number of 30 workers to establish a trade union (sections 443 and 452). The Committee once again recalls that the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 502 and 504]. With respect to the statement by the Government that the existence of an employer–employee relationship would be a precondition for freedom of association, the Committee recalls that it has considered that, by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Compilation, para. 387].
4. 360. In the light of the foregoing, the Committee urges the Government to take the necessary measures to complete the registration process of the organization in question without delay. The Committee requests the Government to keep it informed in this regard. The Committee refers the legislative aspects of this case to the CEACR and urges the Government to avail itself of the technical assistance of the Office in order to proceed with a reform of its legislation without delay in the manner indicated in the present conclusions. Lastly, the Committee requests the Government and the complainant organization to keep it informed of the outcome of the action for non-compliance brought by FRENAPP against the Ministry of Labour before the Constitutional Court.

The Committee’s recommendations

1. 361. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee urges the Government to take the necessary measures to complete the registration process of FRENAPP without delay. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee refers the legislative aspects of this case to the CEACR and urges the Government to avail itself of the technical assistance of the Office in order to proceed with a reform of its legislation without delay in the manner indicated in the present conclusions.
   • (c) The Committee requests the Government and the complainant organization to keep it informed of the outcome of the action for non-compliance brought by FRENAPP against the Ministry of Labour before the Constitutional Court.