Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ecuador (Ratification: 1959)

Other comments on C098

Observation

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The Committee notes the Government’s reply to the joint observations of the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT) and the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 1 October 2020.

The Committee also notes the observations of Public Services International in Ecuador (PSI-Ecuador), received on 1 September 2021, on issues examined by the Committee in the present comment, and also the Government’s reply in this regard.

Technical assistance. The Committee recalls that in December 2019 the Office, at the request of the Government, carried out a technical assistance mission which presented the tripartite constituents with a draft road map for initiating a tripartite dialogue with a view to adopting measures to address the comments of the ILO supervisory bodies. The Committee notes the Government’s indication that, although the undertaking given previously did not result in practical action, the Government wishes to receive technical assistance, for the time being with regard to tripartite social dialogue. Noting with regret that the Government has not taken action to follow up the technical assistance provided by the Office in December 2019 concerning measures to respond to the comments of the ILO supervisory bodies, the Committee firmly hopes that the assistance in which the government has expressed an interest will be given practical effect very soon and that any strengthening of social dialogue that results from it enables progress to be made with regard to adopting the measures needed to bring the legislation into line with the Convention with respect to the points set out below.

Application of the Convention in the private sector

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. For many years, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination at the time of access to employment. The Committee notes that the Government reiterates that the labour regulations in force give an adequate level of protection and that it does not consider it necessary to issue an additional standard in this respect. Recalling that Article 1 of the Convention covers the prohibition of anti-union discrimination at the time individual workers are hired, so that access to employment is not made subject to the condition that workers shall not join a union or relinquish union membership, as well as practices such as “blacklisting” members to prevent them being hired, the Committee underlines the need for the above-mentioned provisions to be included in the legislation and requests the Government to provide information on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that in accordance with section 221 of the Labour Code, collective labour agreements must be concluded with the enterprise committee or, if one does not exist, with the organization with the largest number of worker members, provided that the latter represents over 50 per cent of the workers in the enterprise. The Committee previously urged the Government to adopt the necessary measures, in consultation with the social partners, to amend section 221 so that if there is no organization that represents more than 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee notes that the Government reiterates that this requirement for the negotiation of a collective agreement is closely connected to the principles of democracy, participation and transparency since the benefits obtained in the collective agreement apply to all workers in the enterprise or institution. The Committee once again points out that while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see 2012 General Survey on the fundamental Conventions, paragraph 226). The Committee recalls that, even though the requirement of representativeness for signing collective agreements is fully compatible with the Convention, the level of representativeness set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining as referred to by Article 4 of the Convention. The Committee recalls that in previous comments it noted the low rate of coverage of collective bargaining in the private sector. The Committee observes that, according to the statistics provided by the Government, between 2019 and August 2021 a total of 45 collective agreements were signed in the private sector. In light of the above, the Committee urges the Government to take the necessary measures, after consulting the social partners, to amend section 221 of the Labour Code so that if there is no organization comprising more than 50 per cent of the workers, trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee requests the Government to provide information on all the measures taken or envisaged in this respect. The Committee also requests the Government to continue providing information on the number of collective agreements signed and in force in the country, and also the sectors of activity (including agriculture and the banana sector) and the number of workers covered by them.

Application of the Convention in the public sector

Articles 1, 2 and 6. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee noted the protections against anti-union discrimination and interference, including with regard to the “compulsory purchase of redundancy mechanism”, set out in the Basic Act reforming the legislation governing the public service (Basic Reform Act). Having observed that the said Act contained provisions which explicitly protected Civil Service Committee officers, the Committee asked the Government to take the necessary measures to ensure that the legislation contained provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference. The Committee also asked the Government to indicate the penalties and compensation applicable to acts of anti-union discrimination and interference committed in the public sector and to provide information on the outcome of the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional. The Committee notes the Government’s indication that protection against acts of discrimination and the right to form trade unions are established through explicit standards, both in the Constitution of the Republic and section 187 of the Labour Code and in the Basic Public Service Act (LOSEP), which prohibits all acts of discrimination against public servants. The Government considers that the labour regulations in force provide an adequate level of protection for public servants. The Committee observes that the Committee on Freedom of Association recently examined allegations of dismissals of leaders of organizations of public servants, stating that it trusted that the Government would take the necessary measures to ensure that the legal provisions applicable to the public sector, currently focusing on the protection of Civil Service Committee officers, protect all leaders of public servants’ organizations against possible acts of anti-union discrimination (see Report No. 393, March 2021, Case No. 3347, paragraph 433). The Committee once again emphasizes that it is important that the legislation should grant the same type of protection against possible acts of anti-union discrimination and interference to all leaders of all organizations of public servants on equal terms. The Committee therefore urges the Government to take the necessary steps to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference, and also provisions that establish penalties constituting a deterrent against committing such acts. The Committee requests the Government to provide information on any measures taken or envisaged in this regard. Furthermore, with regard to the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional, the Committee notes the indication by PSI-Ecuador that the Constitutional Court, by a ruling issued on 28 October 2020, declared the compulsory nature of the purchase of redundancy with compensation to be unconstitutional. The Committee recalls that the compulsory redundancy purchase mechanism allowed the public administration, in exchange for payment of compensation, to unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination. The Committee recalls that it previously underlined the importance of measures being taken to ensure that use of the compulsory redundancy purchase mechanism did not give rise to acts of anti-union discrimination. The Committee duly notes the Constitutional Court ruling and observes that it indicates that the rules governing redundancy purchase with compensation will remain in force but application of that mechanism must not be compulsory. The Committee observes that PSI-Ecuador considers that the ruling represents an important step forward but does not provide the protection against anti-union discrimination provided by the Convention since, although it removes the word “compulsory” and also the obstacle to returning to work in the public sector for persons who have been dismissed, it leaves victims unprotected, with no consideration of restitution or compensation. PSI-Ecuador also alleges that the Government has so far not complied with the ruling as regards removing the obstacle to returning to work in the public sector. Recalling that the trade unions previously denounced the use of the compulsory redundancy purchase mechanism to dismiss public servants for their trade union activities, the Committee requests the Government to send its comments in this regard.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee observed that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 did not recognize the right to collective bargaining for public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee also noted that the 2015 amendments to the Constitution excluding the entire public sector from the scope of collective bargaining were annulled by the Constitutional Court (ruling No. 018-18-SIN-CC of 1 August 2018) and that on 4 December 2019 the Ministry of Labour issued Ministerial Order No. 373 in order to apply the Constitutional Court ruling. The Committee asked the Government to ensure the full implementation of the above-mentioned Ministerial Order in the various state institutions and urged the Government to intensify its efforts to reopen an in-depth debate with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of employees in the public sector covered by the Convention. The Committee notes the Government’s indication that although there are no regulations on collective bargaining mechanisms for public servants, since this right is conferred only on other categories of workers in the sector, the Government reiterates its undertaking to promote tripartite dialogue in this respect. With regard to the application of Ministerial Order No. 373, the Government indicates that: (i) on 6 February 2020, the Directorate for Legal Advice issued a legal opinion on the applicability of the Order; (ii) on 15 May 2020, the Ministry issued a series of circulars asking public sector entities to provide information on compliance with the Order; (iii) a total of 87 public sector institutions provided documentation and 57 of them changed the employment regime for a total of 346 public servants from the Basic Public Service Act (LOSEP) to the Labour Code; and (iv) the Ministry changed the employment regime for 242 workers. The Committee duly notes the foregoing and also observes that, according to the Government, between 2019 and August 2021, a total of 85 collective agreements were signed in the public sector. The Committee also notes that, according to PSI-Ecuador, the Basic Act on humanitarian support to combat the health crisis resulting from COVID-19 (Humanitarian Support Act), published on 22 June 2020, imposes restrictions on collective bargaining for public sector workers governed by the Labour Code. PSI-Ecuador indicates that various legal actions to declare the Act unconstitutional have been brought in this regard and that the Constitutional Court has not yet handed down any rulings. Moreover, observing that the legislation continues not to recognize the right of collective bargaining for public servants, the Committee is bound to recall once again that, under Articles 4 and 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State (employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, transport sector personnel, etc.) are covered by the Convention (see 2012 General Survey, paragraph 172) and should therefore be able to negotiate collectively their conditions of employment, including their wage conditions, since mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see 2012 General Survey, paragraph 219). The Committee therefore urges the Government to reopen an in-depth debate with the trade union organizations concerned with a view to establishing an adequate collective bargaining mechanism for all categories of public sector employees covered by the Convention. The Committee requests the Government to provide information on the collective agreements signed with public sector workers and also information on the outcome of the legal actions to declare the Humanitarian Support Act unconstitutional.

The Committee notes with regret that it has so far been unable to observe progress with regard to the adoption of measures needed to bring the legislation into line with the Convention. The Committee notes the Government’s indication that, because of the upheaval caused by the COVID-19 pandemic, it is currently giving priority to an Opportunities Bill, which incorporates the different views of the stakeholders in the labour and social spheres and through which the Government is endeavouring to stimulate and revitalize the labour market. While taking due note of these indications, the Committee recalls the fundamental importance of ensuring the full application of the Convention to tackle the consequences of the pandemic and urges the Government to make the necessary efforts to adopt specific measures in relation to the points highlighted in this comment. In this regard, the Committee notes that the Ministry of Labour, through the Directorate of Labour Organizations, expresses the intention of collaborating on any legislative initiative aimed at improving the exercise of workers’ rights. The Committee hopes that the technical assistance referred to by the Government for strengthening social dialogue is put into practice very soon and that its results enable progress with regard to the matters raised in the present comment. In this regard, the Committee hopes that any legislative reforms undertaken, in consultation with the social partners, will contribute towards ensuring observance of the rights established by the Convention.

[The Government is asked to reply in full to the present comments in 2022.]