Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s report.

The Committee recalls that for several years its comments have addressed the following points.

1. Need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes with regret that there has been no tripartite discussion about reducing the number of workers required to establish a trade union or a works committee. While recalling that this minimum number would be permissible for industry trade unions, the Committee again requests the Government to take the necessary steps to reduce the minimum number of workers required to form associations or works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces and workers in the shipping sector to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), which comprises civilian workers of the armed forces. The Committee notes that the Government once again states that the civilian workers of the armed forces may join organizations and associations (in its previous observation, the Committee noted the Government’s statement that they enjoy the right of association under article 35 of the Political Constitution), and that no application to register by a TRANSNAVE union having been found, the Government has requested the trade union to submit an application for registration or a copy of its earlier application.

3. Need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations for furthering and defending their occupational and economic interests and to have recourse to strike action. The Committee notes that, according to the Government, there has as yet been no progress regarding the reform of the abovementioned legislation. The Committee recalls that, according to Article 2 of the Convention, all workers, with the sole possible exception of the armed forces and the police, should have the right to organize irrespective of any possible restrictions on the right to strike for certain categories of workers (public servants exercising authority in the name of the State and workers in essential services, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee requests the Government to take steps to secure the amendment of the abovementioned provisions of the Civil Service and Administrative Careers Act and of the Political Constitution, and to provide information in its next report of the measures taken to that end.

4. Need to amend section 522(2) of the Labour Code under which the Ministry of Labour determines the minimum services in the event of a strike in case of disagreement between the parties. The Committee notes that a proposal to reform the legislation has been drafted and that the Committee will be informed as soon as there are concrete results. The Committee recalls that, in the absence of an agreement between the parties, responsibility for determining the minimum services should lie with an independent body which has the confidence of both parties, and not with the Ministry of Labour. The Committee expresses the hope that the abovementioned reform will be consistent with the principles of the Convention, and requests the Government to provide information in its next report on any developments in the reform.

5. Implicit denial of the right to strike to federations and confederations (section 505 of the Labour Code). The Committee notes that the Government has not sent its observations on this matter. The Committee recalls that under Article 6 of the Convention federations and confederations must have the right to organize their administration and activities and formulate their programmes. The Committee requests the Government to amend section 505 of the Labour Code so as to ensure the abovementioned right.

6. Prison sentences for participation in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes that, according to the Government, as part of the reform of the legislation, Decree No. 105 is to be amended or repealed. The Committee hopes that this decree will be amended in the reform of the legislation, and requests the Government to provide information in its next report on any developments in this regard.

7. The requirement of Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, consideration has been given to including this matter too in the reform of the legislation. The Committee hopes that, in the course of the abovementioned reform, it will be borne in mind that in conformity with Article 3 of the Convention "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). The Committee requests the Government to provide information in its next report on any developments in this aspect of the reform.

Lastly, in view of the Government’s statement that there is a proposal for a reform of the legislation, the Committee suggests that the Government may wish to seek technical assistance from the Office to ensure that the reform takes full account of the provisions of the Convention.