Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ecuador (Ratification: 1967)

The Committee notes the Government’s reply to the observations of the Federation of Petroleum Workers of Ecuador (FETRAPEC), Public Services International (PSI) in Ecuador and the United Workers’ Front (FUT) of 2023. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 30 August 2024, which reiterate the comments made to the Committee on the Application of Standards of the Conference (hereinafter the Conference Committee) in June 2024 on the application of the Convention by Ecuador. The Committee further notes the detailed joint observations of PSI in Ecuador, the Ecuadorian Confederation of Free Trade Unions (CEOSL) and FETRAPEC, received on 31 August 2024, and the observations of the International Trade Union Confederation (ITUC), received on 17 September 2024, and also notes the Government’s reply to all these observations. The Committee also notes the observations of the CEOSL, received on 5 October 2024, and the Government’s reply thereto.

The Committee notes that the observations of the trade unions referred to above address matters that are mainly examined in the present comment. The Committee notes that the ITUC also refers to the systematic and unjustified rejection of applications for the registration of trade unions and PSI in Ecuador, the CEOSL and FETRAPEC express concern at the Basic Bill to reform the Labour Code for the Ethical Management and Transparency of Associations and Workers’ Unions which, according to their indications, was submitted to the National Assembly on 30 July 2024 and proposes the legalization of various acts of interference in the independence of trade unions. The Committee requests the Government to provide its comments in this regard. The Committee also notes that the ITUC expresses concern, in the same way as the FETRAPEC, PSI in Ecuador and FUT did in 2023, on the implementation of Executive Decree No. 730 of 2023 ordering the armed forces to take action to suppress organized crime, indicating that it could be applied to any attempt at popular mobilization or social protest. The Committee notes the Government’s indication that the objective of the Decree is to combat organized crime and that it will be applied in such a manner that it does not affect the right to social mobilization and protest, with the guarantee that action by the armed forces will be carried out within the legal framework and in respect of human rights. The Government adds that it is prepared to maintain an open dialogue with trade unions and constantly seeks respect for freedom of association. The Committee requests the Government to ensure that the Decree is not applied in such a manner as to affect the exercise of the rights set out in the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 112th Session, June 2024)

The Committee notes the discussion held in the Conference Committee at its 112th Session (2024), in which the Conference Committee expressed concern that the Government had so far not accepted a direct contacts mission or availed itself of ILO technical assistance, as previously requested. The Conference Committee deplored the failure of the Government to register a tripartite delegation to the Conference and noted with concern the general anti-trade union climate prevailing in the country which is not conducive to the free exercise and full enjoyment of the rights and freedoms set out in the Convention. The Conference Committee urged the Government to take effective and urgent measures to:

• immediately and effectively take the necessary steps to determine culpability and punish the perpetrators of the murder of Mr Sandro Arteaga Quiroz;
• prevent violence in relation to the exercise of legitimate trade union activities;
• ensure that trade unionists are able to exercise their activities in a climate free from violence, harassment and intimidation, and within the framework of a system which guarantees the effective respect of civil liberties and freedom of association rights;
• ensure that all workers, without distinction whatsoever, including self-employed and informal workers, have the right to establish and join trade unions of their own choosing in law and practice;
• amend, in full consultation with the social partners, the following legal provisions in order to bring them into line with the Convention:
• sections 443, 449, 452 and 459 of the Labour Code, which require an excessive number of workers for the establishment of workers’ associations and limit the possibility of creating trade unions by branch of activity;
• section 10(c) of Ministerial Decision No. 0130 of 2013 on compulsory time limits for convening trade union elections;
• section 459(4) of the Labour Code, which requires Ecuadorian nationality to be eligible for trade union office;
• section 459(3) of the Labour Code, which allows the role of officer of an enterprise committee to be filled by any worker, whether or not a trade union member;
• section 11 of the Basic Reform Act, which excludes certain categories of public workers from the right to form and join trade unions;
• provisions of the Basic Reform Act, which grant privileges to majority committees of public servants and deprive all other organizations of the possibility to defend the interests of their members;
• Decree No. 193, which allows for administrative dissolution of public servants unions;
• take all possible measures to register the National Federation of Education Workers (UNE) without delay.

The Conference Committee also invited the Government to avail itself of ILO technical assistance to effectively implement all of the above recommendations.

Technical assistance. Direct contacts mission. The Committee notes that the Conference Committee expressed concern that the Government had not so far accepted the direct contacts mission requested in 2022 or availed itself of ILO technical assistance for the effective implementation of all the recommendations of the Conference Committee. The Committee notes the Government’s indication that the National Labour and Wages Board (CNTS) is a tripartite advisory and technical body, under the responsibility of the Ministry of Labour, which applies the principles of equity and consensus between the various social partners that are members, and the acceptance of the direct contacts mission would therefore involve duplication as the Government is already working to ensure the full and effective application of the Convention. Echoing the concern expressed by the Conference Committee, the Committee deeply regrets that the direct contacts mission that has been requested for the past two years has not yet been carried out. The Committee firmly trusts that the Government, which is ultimately responsible for guaranteeing respect for freedom of association in the country, will accept the direct contacts mission requested by the Conference Committee in 2022. The Committee expresses the hope that the direct contacts mission will contribute to finding appropriate solutions to all the pending issues raised by the ILO supervisory bodies for many years.

Trade union rights and civil liberties. Murder of a trade unionist. In its previous comment, the Committee regretted to note the lack of progress in the investigation of the murder in 2022 of Mr Sandro Arteaga Quiroz, secretary of the Union of Workers of the Manabí Provincial Government. The Committee notes that PSI in Ecuador, the CEOSL and FETRAPEC indicate that there has been no significant progress in the investigation and that the judicial procedure has not yet commenced, which in their view shows significant negligence in light of the facts. The Committee expresses its concern in this regard and regrets to note that the Government has not provided any information on the subject. The Committee notes that the ITUC deeply regrets that there has been no progress in the clarification of the facts relating to the murder and adds that the situation of insecurity has resulted in a considerable and very worrying increase in complaints of violence against trade union leaders, including death threats to coordinators of the Trade Union Association of Banana, Agricultural and Rural Workers (ASTAC) and the dismissal of workers who were endeavouring to establish or join a union, in the context of a generalized and dangerous anti-union climate. The Committee recalls that the ILO supervisory bodies have constantly emphasized the interdependence of civil liberties and trade union rights, and that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations (see the 2012 General Survey on the fundamental Conventions, paragraph 59). Trusting that the Government will guarantee respect for this principle of interdependence, the Committee once again strongly urges the Government to take the necessary measures without delay to determine responsibilities and punish those guilty of the crime of the murder of Mr Sandro Arteaga Quiroz and keep the Committee informed in this respect.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations and enterprise committees. Possibility of creating trade union organizations by branch of activity. For many years, the Committee has been drawing the Government’s attention to the need to amend sections 443, 449, 452 and 459 of the Labour Code so as to: (i) reduce the minimum number of members required to establish workers’ associations and enterprise committees; and (ii) enable the establishment of first-level trade unions that include workers from various enterprises. The Committee regrets to note that the Government does not refer to the amendment of the sections respecting the number of workers required for the establishment of workers’ associations and enterprise committees. The Committee notes that the ITUC, PSI in Ecuador, CEOSL and FETRAPEC reiterate that large enterprises in the country account for 0.5 per cent of all active enterprises, and that it would therefore be impossible to establish unions in over 90 per cent of the production units in the country. They also emphasize that it is urgent to guarantee the possibility for self-employed and informal workers to organize. The Committee is bound to recall that, although the requirement of a minimum number of members is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see the 2012 General Survey on the fundamental Conventions, paragraph 89). The Committee once again urges the Government to take the necessary measures, following consultations with the social partners, to amend the sections of the Labour Code referred to above in the manner indicated and to keep it informed of any developments in this respect. The Committee also requests the Government to indicate whether self-employed and informal workers enjoy the rights set out in the Convention and to specify the corresponding legislative provisions.

With reference to the establishment of organizations grouping together workers from several enterprises, the Committee recalls that: (i) a ruling handed down in 2021 ordered the Ministry of Labour to register the ASTAC as a branch union, despite it being formed of workers from various enterprises, and to adopt regulations for the registration of unions by branch of activity; and (ii) the Ministry registered the ASTAC as a branch union and applied for an extraordinary protection order against the ruling for lack of adequate grounds and legal certainty and failure to comply with due process. The Committee notes, on the one hand, the Government’s indication that there is no provision in the legislation allowing the organization of workers in several enterprises by branch of activity while, on the other hand, it indicates that unionization by branch of activity has been included in the Regulations respecting labour organizations for the exercise of the right to freedom of association and trade union independence (hereinafter the ROL), issued on 18 January 2024 by the Ministry of Labour. The Government indicates that on 18 December 2023, the members of the executive committee of the ASTAC were registered for the period 2023 to 2025. The Committee notes the ITUC’s indication that the Ministry has refused to issue regulations on the establishment of branch unions and claims that the ruling respecting the registration of the ASTAC applies between the parties. The PSI in Ecuador, CEOSL and FETRAPEC observe that: (i) no decision has yet been handed down concerning the application for an extraordinary protection order; (ii) on 7 August 2024 the Constitutional Court requested the Ministry of Labour to provide a detailed report on compliance with the 2021 ruling; and (iii) in March 2024, in response to the application for the registration of the Audiovisual and Cinematographic Worker’s Union of Ecuador (SITACE), the Labour Organizations Department indicated that it does not have competence to issue a decision concerning freedom of association by branch of activity. The Committee also notes the CEOSL’s indication that: (i) on 6 June 2024, the Bill to reform the Labour Code to guarantee freedom of association was submitted to the National Assembly and, among other amendments, the Bill claims to facilitate trade union organization by branch of activity; and (ii) the Bill has been under discussion by the Labour Law and Social Security Commission of the National Assembly since 3 October 2024. The Committee notes all of the above indications and regrets to note that, despite the comments that it has been making for many years, the establishment of first-level trade unions of workers from various enterprises is still not permitted. The Committee recalls that these matters have been examined by the Committee on Freedom of Association in Cases Nos 3148 (381st, 391st and 407th Reports, of March 2017, October 2019 and June 2024) and 3437 (404th Report, October 2023) and that the Committee on Freedom of Association regretted on each occasion that, despite its recommendations and the follow up by the Committee of Experts, both the national legislation and the practice followed by the Ministry of Labour still do not permit the establishment of first-level trade unions composed of workers from different enterprises. Recalling once again that, in accordance with Articles 2 and 3 of the Convention, workers must be able, if they so wish, to establish first-level organizations at a higher level than the enterprise, the Committee reiterates its firm expectation that the 2021 ruling referred to above will contribute to allowing the establishment of trade union organizations by branch of activity. With reference to its previous request, the Committee notes that the Constitutional Court and the National Assembly will be dealing with this issue and expects that the Committee’s views on this fundamental aspect of compliance with the Convention will be useful for them. The Committee firmly expects that the Government will provide information in the near future on the measures adopted to ensure full recognition, in law and practice, of the right of workers from several enterprises to establish first-level trade union organizations. The Committee also requests the Government to provide information on the process of the registration of the SITACE.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been requesting the Government to amend section 10(c) of the Regulations on labour organizations No. 0130 of 2013 (ROL 2013), which provides that trade union executive committees shall lose their powers and competences if they do not convene elections within 90 days of the expiry of their term of office, as set out in the respective union statutes, such that the consequences of any delay in holding elections is determined by the union statutes themselves, subject to respect for democratic rules. The Committee notes the Government’s indication that: (i) Ministerial Decision No. MDT-2024-012 of 2024, through which the Ministry of Labour issued ROL 2024, repealed ROL 2013; and (ii) section 13 of ROL 2024 provides that, in the event that the executive committee of a trade union has completed the period for which it was elected, it will continue in office until it is legally replaced. The Committee notes with interest this amendment and hopes that it will contribute to the effective exercise of the rights contained in the Convention. The Committee requests the Government to provide information on the impact of the new provision in practice.

Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee has urged the Government to amend section 459(4) of the Labour Code, which provides for the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The Committee notes the Government’s reiterated indication that the prohibition only relates to officers of enterprise committees, not to being a leader or member of other forms of association. The Committee noted that, under the terms of the Labour Code, enterprise committees are one of the forms that trade unions can take within an enterprise. The Committee recalls once again that, under Article 3 of the Convention, all workers’ and employers’ organizations shall have the right to elect their representatives in full freedom and that the national legislation should allow foreign workers to take up trade union office, if so permitted by the organization’s statutes and rules, at least after a reasonable period of residence in the host country. The Committee once again firmly urges the Government to amend section 459(4) of the Labour Code in order to bring the legislation into accordance with the Convention and requests the Government to keep the Committee informed of any developments in this regard.

Election as officers of enterprise committees of workers who are not trade union members. The Committee previously requested the Government to hold consultations with the social partners on the need to amend section 459(3) of the Labour Code (which provides that the role of officer of an enterprise committee may be filled by any worker, whether or not a union member). The Committee notes the Government’s repeated indication that it considers it necessary to maintain tripartite dialogue to determine the feasibility of a possible amendment of the current text. The Committee takes due note of these indications and once again requests the Government to hold consultations with the social partners on the need to amend section 459(3) of the Labour Code to bring it into full compliance with the principle of trade union independence and to keep the Committee fully informed of any developments in this respect.

Application of the Convention in the public sector

Article 2. Right of workers, without distinction whatsoever, to establish and join organizations of their own choosing. The Committee noted previously that, although section 11 of the Basic Act reforming the legislation governing the public sector (hereinafter, the Basic Reform Act), adopted in 2017, recognizes the right of public officials to organize, certain categories of public employees are excluded from this right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory fixed-term contracts. The Committee regrets to note that the Government has confined itself to indicating the applicable legislation and reiterates that public officials have the right to organize to defend their rights, improve the delivery of public services and to strike, without referring to the matters covered by the Committee’s comment. The Committee also notes the indication by PSI in Ecuador, the CEOSL and FETRAPEC that the ROL 2024 sets out two additional requirements which restrict the establishment of trade unions, indicating that the application for legal personality must be accompanied by a justification of the applicable labour regulations for the establishment of first-level organizations in public institutions and by a report of the labour inspector notified to the employer (when the real notification to the employer occurs after the application for registration has been made). The Committee once again urges the Government to take the necessary measures to bring the legislation into line with the Convention so that all workers, with the sole possible exception of members of the police and the armed forces, have the right to establish and join organizations of their own choosing. It requests the Government to report any measures adopted in this regard and to provide information on the impact that the additional requirements set out in ROL 2024 have had in practice.

Right of workers to establish organizations of their own choosing without previous authorization.Organizations of public servants other than committees of public servants. The Committee noted previously that, in accordance with the provisions of the Basic Reform Act, committees of public servants, which must be composed of 50 per cent plus one of the personnel in a public institution, are responsible for defending the rights of public servants and are the only bodies that can call a strike. Emphasizing that all organizations of public officials must be able to enjoy the various rights established by the Convention, the Committee requested the Government to: (i) provide information on organizations of public officials other than committees of public servants and indicate the means available to them to defend the occupational interests of their members; and (ii) take the necessary measures to ensure that the legislation does not limit recognition of the right to organize to committees of public servants. The Committee regrets to note that the Government has confined itself to indicating that committees of public servants are protected by article 326(9) of the Constitution of the Republic, which provides that, for all the effects of the employment relationship in State institutions, workers shall be represented by a single organization. Recalling once again that, under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means of defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes, the Committee urges the Government to take the necessary steps to ensure that legislation does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization and the Committee firmly hopes that the Government will provide information on any measures adopted in this regard.

Article 3. Right of workers’ organizations and associations of public officials to organize their activities and formulate their programmes. The Committee previously strongly urged the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of from one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes the Government’s indication that the adoption of new legislation and the reform of laws is the responsibility of the National Assembly and that penal sanctions are only imposed in cases in which strikers break the law. The Committee regrets to note that, based on the information provided by the Government, it appears that there has been no progress in taking its comments into account. The Committee once again strongly urges the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code in the manner indicated and, until such time as those measures have been taken, to ensure that the Basic Comprehensive Penal Code is not used as a means of criminalizing peaceful social protest. The Committee requests the Government to provide information on any measures adopted in this regard and invites it to draw the attention of the National Assembly to these comments.

Article 4. Dissolution of associations of public officials by the administrative authorities. Recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of associations of public officials, the Committee previously urged the Government to ensure that the provisions of Decree No. 193, which regulates social organizations and maintains engagement in party-political activities as grounds for administrative dissolution, are not applicable to associations of public officials whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s reiterated indication that the Basic Reform Act provides that organizations of public servants may exclusively be dissolved by judicial ruling. The Committee recalls that various trade union organizations have indicated that the reasons for the forced dissolution of labour organizations set out in Decree No. 193 are applied to trade unions because they are considered to be “civil society” organizations, and not trade unions. The Committee urges the Government to ensure that the provisions of Decree No. 193 are not applied to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). After noting the registration of social organizations related to the UNE (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee previously requested the Government to: (i) indicate whether the registration of the UNE-E with the Under-Secretariat of Education in Quito meant that the UNE had been able to resume its activities of defending the occupational interests of its members: (ii) take all the necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee noted that the UNE had filed several legal actions against the dissolution decision and that the Constitutional Court ruling on an extraordinary protection order was still pending. The Committee regrets to note that the Government has confined itself to indicating that the Basic Public Service Act provides that organizations of public officials can be dissolved exclusively by judicial ruling. The Committee notes that, according to the ITUC, PSI in Ecuador, CEOSL and FETRAPEC, in a ruling issued on 12 July 2023, the Constitutional Court partially accepted the extraordinary protection order, found that the right to due process had not been observed in the reasons given for the decisions made by the public authorities, set aside the decision of 18 January 2018 (which had found that the appeal for cassation filed by the President of the UNE was not receivable) and ordered another magistrate on the bench of the Specialized Administrative Dispute Chamber of the National Court of Justice, to be assigned by lot, to rule on the admissibility of the appeal for cassation filed by the complainant. They add that the judicial procedure is still pending in the National Court of Justice and that, irrespective of the ruling, the Government could review its own acts and set aside the administrative decision to dissolve the UNE, without a judicial ruling being necessary to order it to do so. In the same way as the Conference Committee, the Committee requests the Government to take all possible measures for the registration of the UNE without delay. It also requests the Government to provide information on the ruling handed down by the Specialized Administrative Dispute Chamber of the National Court of Justice, and on the possibility of the Government reviewing its own acts, as suggested by the trade union organizations. The Committee also once again requests the Government to ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE and toprovide information in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2025.]