Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

The Committee recalls that in its previous observations it referred to the following points.

1. Need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes the Government’s statement that there is no desire among the social partners to amend these provisions. The Committee regrets to note that it has been referring to this legal requirement for many years and reiterates that, even though this minimum number would be permissible for industry trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee once again expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE). In this respect, the Committee notes the information provided by the Government that there is no explicit prohibition in the Act respecting personnel in the armed forces of the right to organize of civilian personnel in the armed forces and that, as a consequence, article 35 of the Political Constitution, which refers to freedom of association, is fully applicable. The Committee also notes the Government’s statement that, while there is no opposition to the registration of the TRANSNAVE trade union, the workers themselves have no intention of being unionized, for which reason the trade union is not being registered. The Committee nevertheless notes that, during the examination of Case No. 1664, the Government indicated that the workers in TRANSNAVE were governed by the Act respecting personnel in the armed forces, in accordance with which they could not establish a trade union (see the 286th Report of the Committee on Freedom of Association, paragraph 283). In these conditions, the Committee requests the Government to clarify whether civilian personnel in the armed forces and workers in the maritime transport sector benefit from the right to organize and to keep it informed of the measures adopted by the workers of TRANSNAVE with a view to the registration of the trade union.

3. The 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 the Government’s statement that it is assessing the possibility of amending the above provisions with a view to recognizing the right of association of public servants and the consequences of such an amendment not only for the workers involved, but also for the rest of society, particularly with regard to the right to strike. The Committee recalls that, in accordance with 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. Indeed, while the Committee has reiterated on many occasions that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, this right cannot be considered as an absolute right and may be governed by provisions laying down conditions for, or restrictions on, the exercise of this right (see General Survey of 1994, paragraphs 147 and 151). In this respect, the Committee considers that the right to strike may be restricted in the case of public servants exercising authority in the name of the State. Moreover, with regard to services, the Committee considers that the right to strike can also be restricted in essential services, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraphs 158 and 159), irrespective of whether the entity providing such services is public or private. In the case of services which are non-essential, but which are considered to be of public utility, such as education and transport where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met, a minimum service may be established (see General Survey, op. cit, paragraphs 161 and 162). The Committee requests the Government to take measures to amend the above provisions so as to bring them into conformity with Articles 2 and 3 of the Convention.

4. The need to amend section 522(2) of the Labour Code respecting the determination of minimum services in the event of a strike by the Minister in the case of disagreement between the parties. The Committee notes the information provided by the Government that the first subsection of the above section provides that the parties shall agree on the procedures for the provision of minimum services that shall be maintained for the duration of the strike. Nevertheless, the Committee notes that the same section, in subsection 2, provides that in the absence of agreement, arrangements for the provision of minimum services shall be established by the Ministry of Labour. The Committee considers that in this case the determination of the above minimum services should be the responsibility of an independent body in which both parties have confidence, and not the Ministry of Labour. The Committee requests the Government to take the necessary measures to amend section 522(2) of the Labour Code to bring it into conformity with the provisions of the Convention.

5. The implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code) and the imposition of penalties of imprisonment on persons who participate in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes the information provided by the Government that there have been no amendments to the legislation in this respect. The Committee recalls that, in accordance with Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to take measures to amend the above provisions so as to bring them into conformity with the provisions of the Convention.

6. The requirement to have Ecuadorian nationality to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, there are no plans to amend this provision. The Committee recalls once again that, by virtue of 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, op. cit., paragraph 118) so as to ensure that workers’ and employers’ organizations have the right to elect their representatives in full freedom. The Committee therefore once again requests the Government to take measures to amend section 466(4) of the Labour Code.

7. The need to ensure the right to appeal to the judicial authorities against the dissolution by administrative authority of a works committee, as envisaged under section 472 of the Labour Code. The Committee notes the information provided by the Government that, by virtue of section 447 of the Labour Code, "Workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts" and that any dissolution by administrative authority is accordingly suspended until the judicial authority has ruled thereon.

The Committee observes once again that, despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the requirements of the Convention on the points referred to above. The Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above and requests the Government to provide information in this respect in its next report. The Committee once again recalls that ILO assistance is available to the Government for this purpose.