Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) - Ecuador (Ratification: 1979)

Other comments on C144

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee is examining the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019. The Committee also takes note of the technical assistance mission carried out at the Government’s request by the Office in December 2019 with a view to assisting the tripartite constituents in drawing up a road map to strengthen social dialogue and provide specific replies to the supervisory bodies’ comments.

The Committee notes the observations formulated by the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, received on 29 August 2019, as well as the Government’s replies to those, included in its supplementary report of 2020. It also notes the observations of PSI, received on 28 September 2020, and of the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT) and the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC), received on 1 October 2020, relating to the application of the Convention. The Committee requests the Government to provide its replies in that respect.

Tripartism and social dialogue in the context of the COVID-19 pandemic. The Committee notes the information provided by the Government in its supplementary report relating to the tripartite consultations held on 12 and 25 June 2020 within the framework of the National Labour and Wages Council (CNTS). The Government indicates that the objective of those consultations was to present the guidelines issued by the Ministry of Labour to mitigate the effects of the pandemic and to receive proposals from workers’ and employers’ representatives to maintain employment during the health emergency. The Government states that the members of the CNTS agreed on the establishment of a technical committee with the participation of two representatives of the employer sector and two representatives of the worker sector with a view to developing proposals to ensure the sustainability of employment and enterprises, and to address the situation facing the country as a result of the COVID 19 pandemic. The Committee notes, however, that PSI states in its observations that, since March 2020, under the decreed state of emergency, the Government has taken many administrative measures and passed various executive decrees without holding tripartite consultations on those. PSI reports that these measures have led to a regression in workers’ rights, especially those of public sector workers. In this respect, it refers, inter alia, to the introduction of the possibility of reducing the working hours and remuneration of public sector workers, and to the abolishment of various posts in that sector. PSI also refers to the adoption of the Organic Act on Humanitarian Support to combat the crisis resulting from COVID-19 and states that it introduces regressive reforms to the Labour Code. For their part, ASTAC and CEDOCUT report that the workers’ organizations were not consulted prior to the adoption, on 17 September 2020, of Ministerial Agreement No. MDT-2020-185, which contains a new method of calculating the basic unified wage and sets out the possibility of freezing it in 2021. ASTAC and CEDOCUT emphasize the need to adopt measures to guarantee the representation of the workers’ and employers’ sectors in the tripartite bodies, as well as their real and effective participation in the development of standards (see Paragraph 5(c) of Recommendation No. 152). In this context, the Committee recalls the broad guidance provided by international labour standards and encourages Member States to promote and participate in broader tripartite consultation and social dialogue as a solid basis for the preparation and implementation of effective responses to the deep-rooted socio-economic impact of the pandemic. The Committee requests the Government to send detailed and updated information on the tripartite consultations held regarding the measures taken to address the socio-economic impact of the pandemic. It also invites the Government to provide in its next report detailed information on measures taken to build the capacity of the constituents, and strengthen tripartite mechanisms and procedures, as well as on the challenges and good practices identified.

Articles 1, 2 and 3(1) of the Convention. Adequate procedures. Election of the representatives of the social partners to the National Labour and Wages Council (CNTS). In its previous comments, the Committee requested the Government to provide information on the consultations held to establish procedures which ensure effective tripartite consultations. It also requested the Government to send its comments on the observations made by PSI and UNE, in which they indicate that they are not recognized as representative organizations of the workers in the public sector. PSI and UNE also considered that the Government has opted systematically to disregard workers’ organizations that might be an obstacle to the implementation of its reforms but has intervened directly in the establishment of organizations that give legitimacy to its actions. PSI and UNE claimed that the Government had not held effective consultations with them and had not replied to the various proposals put forward concerning the creation of a forum for bipartite dialogue for the public sector incorporated in what was previously the National Labour Council. In its 2020 report, the Government indicates that, in accordance with Ministerial Agreement No. MDT-044 of 30 January 2016, amendments were made to section 10 of Ministerial Agreement No. MDT-2015-0240 of 20 October 2015 on the organization, composition and operation of the CNTS. Specifically, the phrase “trade union federations of legally recognized working persons” was replaced with “federations, confederations, fronts, organizations and/or unions of most representative working persons at the national level”. The Government indicates that the CNTS is thereby composed of those organizations of the most representative workers at the national level. In this regard, the Committee notes that, in its 2020 observations, PSI reports the lack of an adequate procedure and political will to determine the "most representative organizations", resulting, in practice, in the absence of an institution for tripartite consultation on international labour standards. Furthermore, UNE and PSI reiterate that they are still not recognized as representative organizations of the public sector, and nor are their affiliate organizations. In its reply, the Government indicates that the Ministry of Labour has a register of workers’ organizations, in which the level of representation is determined by the number of workers represented by that organization according to institutional records. The Committee recalls that the term “the most representative organizations of employers and workers” as provided for in Article 1 of the Convention “does not mean only the largest organization of employers and the largest organization of workers.” If in a particular country there are two or more organizations of employers or workers which represent a significant body of opinion, even though one of them may be larger than the others, they may all be considered to be “most representative organizations” for the purpose of the Convention. In such cases, governments should endeavour to secure an agreement of all the organizations concerned in establishing the consultative procedures (see 2000 General Survey on tripartite consultations, paragraph 34).

With regard to the procedure for selecting representatives to the CNTS, section 10(1) of the 2015 Ministerial Agreement provides that the Minister of Labour shall convene “the employers’ and workers’ organizations in order that, by means an elector appointed by each of them, the principal and alternate representatives of the CNTS may be elected.” If no agreement is reached, the Minister of Labour calls a second election. In this respect, the Committee notes that, PSI and UNE report that they did not obtain a response from the Government to the nomination they presented for the designation of new representatives of the CNTS in 2018. In this regard, the Government indicates that PSI has not been considered a member of the CNTS, as it does not meet the requirements established for membership. The Committee notes that ASTAC and CEDOCUT denounce the introduction of various legislative reforms in recent years that hinder the holding of tripartite consultations, and in particular the representation of workers’ organizations freely elected by their organizations, on various national tripartite bodies, such as the Board of Directors of the Ecuadorian Social Security Institute (IESS) in which the worker sector has not been represented since May 2018. The Committee also notes that ASTAC and CEDOCUT refer to the "Report on violations of trade union rights" of the International Trade Union Confederation (ITUC), which states that between 2013 and 2015 there was a fall in representation and a de-institutionalization of social dialogue and tripartism. In addition, the same report denounces the emergence of workers’ organizations parallel to the existing ones, and close to the Government. Lastly, the Committee notes that the road map presented by the technical assistance mission carried out in December 2019 proposed, as a central point, the inclusion of all representative trade union organizations in the CNTS. The Committee emphasizes that the participation of all the representative trade unions in the CNTS is a fundamental element for carrying out effective consultations and the application of the Convention in general. In the light of the observations of the workers’ organizations, the Committee requests the Government to adopt the measures necessary to ensure that all the country’s "most representative organizations" of employers and workers can participate in the CNTS and the other consultative bodies of a tripartite nature, such as the Board of Directors of the IESS, pursuant to Recommendation No. 152, Paragraph 5(c). The Committee also requests the Government to adopt the measures necessary to obtain the agreement of all organizations concerned, including workers’ organizations freely elected by their organizations’ members, with the establishment of the consultative procedures regarding the criteria used to determine representativeness among those organizations.

Article 5. Effective tripartite consultations. The Committee notes the information provided by the Government relating to tripartite consultations held on international labour standards between June 2019 and June 2020. The Government indicates that in February 2019 tripartite consultations were held, within the working groups established for this purpose, on comments to formulate on the draft Violence and Harassment Convention, 2019 (No. 190), and draft Violence and Harassment Recommendation, 2019 (No. 206), during the 108th Session of the International Labour Conference. The Government also reports that, based on the support expressed by the social partners on 19 September 2019, a technical report was sent to the Ministry of Foreign Relations and Human Mobility for the adoption of the measures necessary for the ratification of Convention No. 109 and Recommendation No. 206. In addition, the Government reports that various national institutions are participating in the preparation of a report on the potential ratification of the Protocol of 2014 to the Forced Labour Convention. The Government indicates that, once the report has been finalized, it will be sent to the National Assembly and other national bodies for discussion on potential ratification of the Protocol. The Committee notes, however, that the Government has not indicated whether there are plans to hold tripartite consultations relating to the potential ratification of the Protocol. With regard to the consultations held on reports on ratified Conventions, the Government indicates that once these reports are sent to the Office, they are brought to the attention of the employers’ and workers’ organizations, through the representatives of these sectors on the CNTS. In this respect, the Committee draws the Government’s attention to the fact that “in order to be ‘effective’, consultations must take place before final decisions are taken, irrespective of the nature or form of the procedures adopted… The effectiveness of consultations thus presupposes in practice that employers’ and workers’ representatives have all the necessary information far enough in advance to formulate their own opinions” (see the 2000 General Survey on tripartite consultation, paragraph 31).

The Committee notes, however, that UNE and PSI maintain that they were not consulted with regard to international labour standards or the Government’s request for technical assistance from the Office for the reform of the Labour Code, or other labour law reforms introduced within the CNTS. The Government indicates that during 2019 it held dialogues with workers’ organizations about the proposed labour reforms and their benefits. In addition, in its 2020 supplementary report, the Government states that on 25 May 2020, it held a meeting with various public sector workers’ organizations affiliated with PSI, at which matters such as the visit of the ILO technical mission to the country and the ratification process of Convention No. 190 were addressed. The Government reports tripartite consultations held throughout 2019 within the CNTS relating to the review and adoption of labour reforms and wage determination for 2020. It also refers to the establishment, under Ministerial Agreement No. MDT-2018-0008, of four standing social dialogue working groups, including the standing public sector working group. The Government indicates that, on 15 June 2018, PSI requested to participate in the public sector working group, which the Government acknowledged via official letter No. MDT-MDT-2018-0535 of 18 July 2018. The Committee requests the Government to continue providing up-to-date information indicating the specific content and the outcome of the tripartite consultations held on all issues relating to international labour standards covered by Article 5(1)(a) to (e) of the Convention. Furthermore, in the light of the observations of UNE and PSI, the Committee requests the Government to send detailed information on the manner in which it is ensured that all the most representative organizations participate in those consultations. The Committee also requests the Government to provide information on the consultations held with the social actors on ways to improve the functioning of the procedures required under the Convention, including the possibility of establishing a schedule for the preparation of reports far enough in advance to enable the social partners to formulate their contributions in this respect (Article 5(1)(d)).