Solicitud directa (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Ecuador (Ratificación : 1967)

Article 3 of the Convention. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (the Basic Reform Act) of 2017 prohibited strikes in the following public services; health; environmental sanitation; education; the justice system; the fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transport and distribution; public transport; and the postal and telecommunications service. The Committee requested the Government to take the necessary measures to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes. The Committee regrets to note that, instead of providing information on the adoption of the measures referred to above, the Government has confined itself to reiterating the applicable legislation and indicating that the legislative function is vested with the National Assembly. The Committee recalls that it noted that: (i) article 326(15) of the Constitution of the Republic prohibits the paralysis of the public services indicated above and provides that the law shall establish limits that ensure the functioning of those services; and (ii) Ministerial Decision No. MDT-2018-0010 of 2018, which regulates the exercise of the right to organize, including the right to strike, of public servants, provides that the presence at work of at least 20 per cent of the total workforce of the institution shall be ensured in order to address the essential needs of users and protect the facilities, assets and property of the institution. The Committee is bound to recall once again that the ILO supervisory bodies have considered that it should be possible for strikes to be organized by workers in transport, public education and fuel distribution services and in the hydrocarbon sector (General Survey of 2012 on the fundamental Conventions, paragraph 134). Furthermore, considering that the Basic Reform Act provides that, in the absence of an agreement, the arrangements for the provision of minimum services shall be established by the Ministry of Labour, the Committee once again recalls that any disagreements concerning minimum services should not be resolved by the government authorities, and that it should be possible to have recourse to a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised, and is empowered to issue enforceable decisions (General Survey of 2012, paragraph 138). Accordingly, the Committee once again requests the Government to take the necessary measures to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes and that the determination of minimum services is in accordance with the above principles, and to provide information on any developments in this regard.

Determination of minimum services in the private sector. The Committee previously indicated the need for the Government to amend section 515 of the Labour Code to ensure that, in the event of disagreement between the parties concerning the determination of minimum services in the private sector, the decision does not lie with the government authorities. The Committee recalls that in its previous comment it noted the Government’s indication that the new Government authorities would continue to analyse the reforms needed in relation to labour, including the revision of section 515 of the Labour Code. The Committee regrets to note that the Government has confined itself to reiterating the contents of the applicable legislation without providing any other information. The Committee therefore once again requests the Government to take the necessary measures to amend section 515 of the Labour Code in the manner indicated.

Compulsory arbitration in the private sector. The Committee previously noted that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals and requested the Government to take the necessary measures to amend the legislation in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s reiterated indication that the Labour Code in section 225 envisages mediation as a dispute settlement mechanism and that, where it is not successful, the dispute is submitted for compulsory consideration by the Conciliation and Arbitration Tribunal. The Government also refers to Ministerial Decision No. 2024-080, which provides in section 16 that, in the event that the parties do not reach agreement, at the request of one of the parties, the dispute shall be referred for settlement to the Conciliation and Arbitration Courts, which shall deal with the dispute in accordance with the provisions of the Labour Code. The Committee notes that the provisions to which the Government refers not only provide for the possibility of referring disputes to mediation, but also to compulsory arbitration. The Committee further notes that Public Services International (PSI) in Ecuador, the Federation of Petroleum Workers of Ecuador (FETRAPEC) and the Ecuadorian Confederation of Free Trade Unions (CEOSL) indicate that: (i) the imposition of compulsory arbitration in collective disputes has resulted in a considerable limitation of the right to strike in the country and has restricted the capacity of trade unions to organize their administration and activities and plan their activities; and (ii) the time taken by procedures respecting collective disputes is beyond any reasonable limit and, even though some disputes have been resolved, the time required has been excessive. The Committee once again recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable: (i) when the two parties to the dispute agree to such arbitration; or (ii) when the right to strike may be restricted, or even prohibited, that is: (a) in the case of public servants exercising authority in the name of the State; (b) in disputes in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee regrets to note that no progress has been achieved in taking its comments into account and it once again requests the Government to take the necessary measures to amend the legislation so that compulsory arbitration is only possible in the situations referred to above.

Articles 3 and 6. Right to strike of federations and confederations. The Committee has been asking the Government to take the necessary legislative measures to ensure that federations and confederations can fully exercise the rights of collective bargaining and to strike. The Committee regrets to note that the Government has confined itself to reiterating that the national legislation guarantees the right to strike as a means of protest by workers, as well as their right to be represented through their associations, federations and confederations. The Committee notes that PSI Ecuador, the CEOSL and FETRAPEC reiterate that federations and confederations cannot legally call strikes, and that only unions at the enterprise level can do so. The Committee once again recalls that it has considered that strikes are often called by federations and confederations, which should be recognized as having the right to strike. Consequently, legislation which denies them this right is not compatible with the Convention (General Survey of 2012, paragraph 122). The Committee once again requests the Government to take the necessary legislative measures to ensure that federations and confederations can fully exercise trade union rights, including the right to strike, and to provide information in this regard.

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