Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)



A Government representative, referring to the earthquake that had occurred on 16 April 2016 and its serious consequences, said that the Government had given priority to the region in question and had delivered human, material and financial resources to the affected areas and population, and for this reason it had not been in a position to send an accredited delegation from the capital and had provided explanations to the secretariat. Ecuador had ratified all international human rights instruments and 61 ILO Conventions, including the eight fundamental Conventions. The significant measures adopted, such as its policies on people with disabilities and their placement in employment, the fight against child labour, particularly its worst forms, the reduction of extreme poverty and the improved distribution of wealth, had enabled the country to set an example through its achievements in such areas. The 2008 Constitution was based on the ancestral Andean philosophy of “Buen Vivir” (good living), which gave priority to the human being over capital. It guaranteed the rights of workers, including freedom of association. With a view to updating the Labour Code, which dated from 1938, the Act on labour justice and the recognition of household work had been adopted and entered into force on 20 April 2015. The Act took into account several of the recommendation of the ILO technical mission which visited Ecuador from 26 to 30 January 2015, following an invitation from the Government. The Act provided for: (i) the elimination of types of recruitment that reduced labour stability; (ii) the adoption of measures to eliminate all forms of discrimination, whether direct or indirect, affecting workers, as a result of which any dismissal of trade union leaders or pregnant or breastfeeding women would be without affect; (iii) the democratization of worker representation, which meant that workers had the right to freely elect persons to represent them on enterprise committees, whether or not its members belonged to a trade union; (iv) the implementation of universal social security; and (v) the repeal of the provision that required authorization for foreign workers to work in Ecuador. Other issues addressed by the ILO technical mission and raised by the Committee of Experts were related to the draft amendments to several constitutional rules. Those draft amendments, in relation to which the Constitutional Court had issued a favourable ruling, provided for, inter alia, the removal of Article 229(3) of the Constitution, which provided that “workers from the public sector shall be subject to the Labour Code”. The removal of this provision had been proposed with a view to ensuring equal treatment for public employees, so that as from the entry into force of the new rules, all public employees would be covered by the Basic Act on the Public Service (LOSEP), which provided greater benefits than the Labour Code. The Committee of Experts had referred to the amendment of Article 326(16) of the Constitution, which provided that only the private sector had the right to engage in collective bargaining. In this regard, she emphasized that in the public sector employers did not make a profit, and that collective agreements had no meaning in balancing employer-worker relations. Furthermore, section 221(2) of the Labour Code provided that public sector employees could negotiate collective agreements through the establishment of a single central committee comprising over 50 per cent of such workers. She thanked the Government of Uruguay for having offered to share information on experiences and good practices in this regard.

Regarding the observation of the Committee of Experts, which indicated that the responsibility of the Ministry of Labour to determine the abusive nature of collective agreements in the public sector should be transferred to the judicial authorities, she emphasized that Ministry Labour Orders Nos 76 and 155A guaranteed employment equality in state institutions, ensuring that workers enjoyed the benefits granted to them by the law, establishing a procedure to revise collective agreements and providing equal support to employers and workers. If mediation failed, conciliation and arbitration tribunals intervened. That process would be distorted if the matter was referred to the judiciary. Finally, she emphasized that the commitments undertaken by the Government when it concluded collective agreements as an employer had material and legal limitations that were directly related to budgetary availability, which made it impossible to give effect to abusive clauses, also because all agreements that favoured minorities created discrimination in the enjoyment of fundamental rights by the vast majority of public sector workers. Ecuador had shown its will comply with international labour standards, as concluded by the ILO technical mission the findings of which had already been mentioned, and to adopt new labour laws that strengthened the protection of workers’ rights.

The Employer members recalled that the Convention had been ratified by Ecuador in 1959 and examined by the Conference Committee on three occasions, most recently in 2014. Regarding the failure to recognize the right of certain public sector workers to engage in collective bargaining, they noted with concern that the Government had emphasized that, while public employees enjoyed the right to organize, they did not have the right to engage in collective bargaining, which constituted a violation of Article 4 of the Convention. According to the findings of the ILO mission of January 2015, the draft constitutional amendments, which had since been implemented with the aim of unifying the regulations governing public servants, established that the wage earners previously subject to the Labour Code would be governed by the LOSEP, in the same manner as the other public servants who enjoyed the right to organize but were not entitled to engage in collective bargaining. In that regard, they supported the call by the Committee of Experts to amend the LOSEP and other administrative laws to bring them into line with the Convention. Concerning the requirement of a level of representativeness for participation in collective bargaining that was deemed excessively high by the Committee of Experts, they emphasized that, due to the absence in the Convention of a specific provision on the levels of representativeness for collective bargaining, national legislation prevailed, within the parameters of rationality and objectivity and with the prior determination of the levels of representativeness required for collective bargaining. The system in force in Ecuador granted preferential rights to the most representative trade unions, which prevented abusive practices and provided guarantees for both employers and workers. On that point, they considered that it would not be possible to recommend the amendment of the legislation in isolation, without assessing the impact that it might have on the rules governing collective bargaining as a whole. Concerning the limitations on collective bargaining in the public sector, the Employer members agreed with the Committee of Experts that such limitations were in violation of the Convention, and they supported the request for the Government to take the necessary measures to restore the right to collective bargaining regarding all issues that affected the employment and working conditions of public servants covered by the Convention. Only the judicial authorities could determine whether some agreements were abusive. They also supported the request for the Government to provide information and take the measures called for by the Committee of Experts, and they encouraged the social partners to avail themselves of article 23(2) of the ILO Constitution.

The Worker members expressed their solidarity concerning the recent earthquake. They expressed concern at the Government’s failure to grant accreditation for the Conference to any worker representatives, which was a violation of the ILO Constitution. Attacks against public sector trade unions had begun in 2008 with the adoption of constitutional amendments which placed a ceiling on public sector pay, limited compensation for termination of the employment relationship, and empowered the Government to review the clauses of collective agreements unilaterally. Furthermore, the Basic Act on Public Enterprises (LOEP) and the LOSEP of 2010 restricted the trade union rights and the right to collective bargaining and to strike for public sector workers. Despite the repeated comments of the supervisory bodies, which emphasized the various violations of the Convention and requested that the situation be remedied, as well as the recommendations of the ILO mission of January 2015, the situation had only deteriorated. Of more concern was the fact that in December 2015, without consulting the unions, and following the violent repression and detention of peaceful protestors, regressive constitutional amendments had been adopted which completely eliminated the right to collective bargaining in the public sector by reclassifying public sector wage earners as public servants as a result of which collective bargaining was confined to the private sector. Similarly, although the right to strike was generally recognized in the public sector, it was prohibited in a large number of sectors, an exclusion which went far beyond the definition of essential public services established by the ILO supervisory system. In addition, as indicated by the Committee of Experts, other issues still needed to be addressed: (i) the need to amend section 221 of the Labour Code so that, where there was no organization with over 50 per cent of the workers as members, minority trade unions could, either alone or jointly, negotiate on behalf of their members; (ii) the lack of adequate protection against anti-union discrimination, including practices such as the procedure known as “compulsory purchase of redundancy”, which allowed the public administration, through the payment of compensation, to unilaterally remove public servants without having to indicate the grounds for their termination; and (iii) the empowerment of the Ministry of Labour to determine the abusive character of collective agreements in the public sector, a decision which should lie within the competence of the judicial authorities. The Worker members urged the Government to meet the trade unions as soon as possible to identify solutions to ensure that the Constitution and national laws were in full conformity with the Convention.

An observer representing the International Organisation of Employers (IOE) and the National Federation of Chambers of Industries of Ecuador referred to the recent constitutional amendments adopted in December 2015, according to which public sector workers were no longer covered by the Labour Code, but by the LOSEP. This Act did not include collective bargaining mechanisms, which was contrary to Article 4 of the Convention. The Government should align its legislation with the Convention, in consultation with the social partners within the framework of an open dialogue to find solutions adapted to the national situation. This would encourage and promote the development and use of collective bargaining mechanisms for employment conditions between the public authorities and organizations of public servants. While international standards did not contain requirements with regard to the minimum number of workers to start a collective bargaining process, the legislative provisions in Ecuador were aimed at ensuring the representativeness of the parties to negotiation. Any amendment envisaged should, in any case, take into account the institution as a whole. Global solutions should be sought which went beyond the mere amendment of isolated provisions. ILO technical assistance would help to find a way of harmonizing the constitutional provisions with the laws governing public servants.

An observer representing Public Services International said that the absence of a worker delegate at the Conference illustrated the Government’s unilateral approach in decision-making. In 2014, the Government had been called to appear before the Committee due to persistent and systematic violations of the Convention. Since 2007, the country had been backtracking on labour matters, with the State, as an employer, abandoning the fundamental principles of international labour standards, especially freedom of association, tripartism and social dialogue. The constitutional reform undertaken by the Government on 3 December 2015 had put an end once and for all to collective bargaining in the public sector, culminating a systematic process which began in 2008. The constitutional reform, through one of one of its transitional provisions, left workers classified as public sector wage earners in legal uncertainty until the reform came into force, although providing that they would not lose their individual and collective rights. He indicated, however, that this transitional measure was not viable and that public sector wage earners, represented, inter alia, by the National Federation of Provincial Council Wage Earners of Ecuador, would indeed lose their acquired rights. This showed that the reform in question represented a major retrograde step in the history of Ecuador. He added that the Trade Union of Workers of the Pichincha Provincial Government was the target of a range of Government strategies to neutralize it. He referred by way of illustration to the manoeuvres by the Ministry of Labour to prevent that trade union from participating stoppage of 13 August 2015 to protest against the constitutional reform process. Despite the Government’s attempts to eliminate certain trade union organizations and collective bargaining, the organizations affiliated to Public Services International, the National Union of Educators and the United Workers Front, were still operational.

An observer representing Education International (EI) said that the situation of public servants had deteriorated since 2014. The Government had not implemented the recommendations of the supervisory bodies or of the ILO technical mission, primarily relating to the teachers’ union, the National Union of Teachers (UNE) with the exception of creating a national consultative labour council. Teachers were covered by the LOSEP and the Basic Act on Intercultural Education and therefore did not enjoy the right to freedom of association or the right to collective bargaining. Moreover, the rights of the country’s trade unions, such as the deduction of union dues or leave for trade union activities, were restricted. There was constant harassment of trade unionists and social protest was criminalized, while union leaders were taken to remote locations and administrative proceedings were brought against them. The executive boards of trade unions were not being registered, which limited their ability to receive dues from members and national or international donations. The Government had also confiscated union funds. An initiative to reform the Basic Act on Intercultural Education had been introduced to allow for better living conditions for teachers through collective bargaining. The Government was urged to respect international labour law and guarantee social dialogue and collective bargaining.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, expressed solidarity following the earthquake that had devastated the country in April 2016. He emphasized the systematic progress made in labour legislation, particularly with respect the insertion into employment of persons with disabilities; the “My First Job” programme; the eradication of the worst forms of child labour; and the implementation of the “Dignified Wage” to cover the basic shopping basket. In addition, the Labour Justice Act had been in force since 20 April 2015 and contained provisions such as “dismissals without effect” to protect union leaders in their functions as representatives of workers’ organizations. He also drew attention to the significant number of trade unions registered over the last decade (1,001) which demonstrated the existence of freedom of association. Moreover, it should be emphasized that the recently adopted constitutional amendment expressly recognized both the right of public servants to organize in defence of their interests and the right to strike. Implementing provisions were now being drafted. In conclusion, he expressed confidence that all outstanding issues before the Committee of Experts would be duly addressed, with the vital assistance of the ILO, and that Ecuador would continue to adopt labour policies that were in conformity with international labour standards.

The Government member of Uruguay endorsed the statement made on behalf of GRULAC and reiterated her Government’s readiness to collaborate with Ecuador, particularly with regard to collective bargaining in the public sector, within the framework of a South–South collaboration process promoted by the ILO.

An observer representing the Confederation of University Workers in the Americas (CONTUA) said that the Government restricted the right of public sector workers to freedom of association, collective bargaining and to strike. In Ecuador, practices persisted known as the “compulsory purchase of redundancy”, which was euphemism, and a linguistic and legal contradiction used to conceal over 15,000 discriminatory dismissals in the public sector, many of which concerned trade union leaders. Moreover, the Government hoped to amend the LOSEP and LOEP in the near future, without consulting trade union organizations. Union leaders were systematically attacked and prevented from carrying out their duties. The Government was urged to talk to the social partners and amend polices that denied people their rights. He wished to draw particular attention to the situation of the Andean Simón Bolívar University, in Ecuador, which was undergoing a difficult period concerning respect of the principle of the independence of the universities. In this connection, workers belonging to trade unions affiliated with CONTUA were systematically attacked to prevent them from exercising their rights in a context of respect for freedom of association. The independence of universities and trade unions were two pillars of social democracy which, in this specific case, were being threatened. Due to the commitment with which they performed their tasks, workers were victims of threats, interventions and interference aimed at restricting their independence and rights. In conclusion, he called for a tripartite mission to visit the country on an urgent basis.

The Government member of Cuba endorsed the statement made on behalf of GRULAC, especially the expression of solidarity with the Government and people of Ecuador following the earthquake that had occurred in April 2016. She appreciated the detailed information provided by the Government concerning the application of the Convention and recognized the achievements of the citizens’ revolution in its efforts to guarantee the right to work and to strengthen inclusion and social protection. She welcomed the recognition by the Committee of Experts of the progress made in the labour legislation in the country. The sustained increase in the registration of new trade union organizations demonstrated the Government’s efforts to guarantee the full exercise of the right to freedom of association. These efforts should be supported by technical assistance from the ILO, especially during the difficult time that the country was going through. She hoped that the focus in this case would be on the cooperation which should characterize relations between the ILO and its member States.

The Worker member of the United States said that the sustained attack on the labour rights of public sector workers had been a long-standing issue in Ecuador. Many parts of the world, including parts of the United States, had sought to reduce or eliminate public sector collective bargaining. In Ecuador, this had been a consistent policy of the Government since 2008. In past years, the Committee on Freedom of Association and the Committee of Experts had noted the measures taken by the Government to limit collective bargaining rights in ways that were inconsistent with the Convention. The Committee of Experts had noted with concern: (i) the persistent problems faced by public sector workers, especially those in education; (ii) the measures introduced in the new Constitution to reduce public sector collective bargaining rights, which were inconsistent with the Convention; (iii) the exclusion of certain public sector workers from the guarantees laid down in the Convention; and (iv) the provisions of the LOEP and of the LOSEP. He hoped that the Committee would adopt clear conclusions on this case, despite the absence of Workers’ delegates from the country. The Committee of Experts had requested the Government to extend the right to collective bargaining to teachers, municipal workers, public services and air transport workers. Despite the consistent comments of the Committee of Experts concerning the exclusion of these workers from the application of the Convention in Ecuador, the Government had amended the Constitution and had adopted laws against the inclusion of public sector workers. This year, the Committee of Experts had clearly indicated that the Convention applied to the following public servants: teachers, municipal employees, public enterprise employees and air transport personnel. The Government should extend the right to collective bargaining to these categories of workers as required by the Convention. He called upon the Government to ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), in order to provide specific coverage for officials involved in the administration of the State.

The Government member of the Plurinational State of Bolivia endorsed the statement made by GRULAC and conveyed a message of solidarity to the Ecuadorian people following the earthquake that had occurred in April 2016. The Ecuadorian legislative process had achieved significant progress in the field of labour rights since 2007. She applauded the adoption in April 2015 of the Act on labour justice and the recognition of household work, which protected trade union members from summary and unjustified dismissal. She emphasized that the amendment to the Ecuadorian Constitution, which explicitly recognized the right of public servants to organize in defence of their interests, and the right to strike, was in the process of implementation. Progress in relation to wages in Ecuador included the increase in the statutory minimum wage of workers by over 100 per cent over recent years, and the introduction of a living wage (salario digno) to cover basic living costs. There had also been an increase in the number of workers registered with the social security system. The country was continuing to develop labour policies that were in line with its national legislation and it would surely continue to share its best practices. In conclusion, she hoped that the Committee would appreciate the progress made by Ecuador taking into account the country’s priorities in the present economic situation.

The Employer member of Mexico began by expressing his condolences and solidarity with the Ecuadorian people in view of the recent earthquake. He questioned the way in which the Committee of Experts was once again addressing the question of the representation of workers for the purposes of collective bargaining. The comment made by the Committee of Experts was excessive in considering that, when the majority of workers did not wish to exercise the right to conclude a collective agreement, any group of workers, irrespective of their number, could do so by themselves or through a trade union. The right to organize and collective bargaining were not obligations, but rights that workers could choose to exercise or not. The Supreme Court of Ecuador had ruled that a collective agreement in a workplace would be extended to workers who were not members of the organization that had concluded the agreement. According to the criteria of the Committee of Experts, Ecuador should amend its legislation. He considered that in such a scenario, everyone was a loser: (i) workers ran the risk of their trade union representation becoming fragmented, and, if a minority of workers engaged in collective bargaining and the outcome was then applied to the other workers, the exercise of the right to collective bargaining of those who had not participated was impaired; (ii) governance was affected, and problems increased in the registration of collective labour agreements; (iii) employers could be obliged to negotiate a variety of collective labour agreements within the same enterprise, which would complicate the administration of human resources and have an impact on costs and industrial relations. If majority representation in any form of social organization was a democratic principle, the concept of the “bargaining agent” acknowledged by the Committee of Experts and the Committee on Freedom of Association as a suitable measure, should not be eliminated, nor should Ecuador be asked to remove the majority principle from its legislation without considering the consequences.

The Worker member of Argentina referred to the unacceptable interference by the Government of Ecuador in the fundamental right to organize and bargain collectively of public employees not engaged in the administration of the State. It was an issue that had already been examined by the ILO’s supervisory bodies and had prompted a technical mission to Ecuador in January 2015. As a result of the entry into force of the Constitution approved in 2008, the adoption of constituent amendments and the enactment of new legislation on public enterprises and employees, the labour rights of workers in the public sector in Ecuador had been seriously prejudiced. Executive Decree No. 813 of 2011 provided that public employees could be dismissed through the process known as “compulsory purchase of redundancy”. In the first six months following the Decree’s entry into force, the Government ordered the dismissal of 5,000 public sector workers without any grounds being given (see Committee on Freedom of Association Case No. 2926). The so-called “compulsory purchase of redundancy” was a violation of the Convention on two counts: not only was it used in a discriminatory manner against public employees who were members of trade unions to decimate the trade union movement or encourage the formation of organizations close to the interests of the Government, but it also undermined the stability clauses included in collective agreements. Under the Basic Act on the Public Service, workers were denied their right to freedom of association, to strike and to bargain collectively. In addition, the Act and the legislation applicable to employees in public enterprises and in the education sector provided no protection against anti-union discrimination or interference. The draft amendment to the Constitution was also designed to achieve the complete eradication of freedom of association and collective bargaining in the public sector, by proposing that “wage earners” in public enterprises be brought under the labour legislation governing the public sector, thereby denying the right to collective bargaining of the last category of public employees still entitled to do so. The legislation did not allow State “wage earners” to negotiate their wages, even though their conditions of employment were governed by the Labour Code.

The State was increasingly interfering in collective bargaining, where it now had the unilateral power to review public sector collective agreements on the grounds that of the possible abusive nature of clauses of agreements. Both the Committee of Experts and the Committee on Freedom of Association had emphasized that such review would be admissible only if the determination of the alleged abusive nature of such clauses was made by the judicial authorities. In conclusion, he called on the Committee to urge Ecuador in the strongest terms to comply with the observations formulated time and again by the ILO supervisory bodies.

The Government representative expressed thanks for the various interventions and the support from GRULAC, and agreed with the position outlined on several occasions concerning the method and criteria for the selection of cases. She also welcomed those delegations which had expressed their support and intention to share information and good practices on issues relating to the Convention. The non-attendance of a delegation from the capital was due to a situation of force majeure which had hit Ecuador and continued to affect it; and fell within the scope of the Union Nations General Assembly Resolution 56/83. Regarding the minimum percentage requirement for collective bargaining, she said that collective agreements applied to all workers, whether or not they were members of a labour organization, whether a trade union or a works council. Therefore, the requirement that the organization or group of organizations which were to negotiate collectively should represent over 50 per cent of the workers with stable contracts was based on the principle of representativity. With regard to the alleged penalization of strikes, it needed to be taken into account that the right to strike was a principle enshrined in Article 326 of the Constitution, and was therefore not punishable by law. However, as in the laws of many countries, the Constitution established limits on stoppages in basic services, defined essentially by the non-infringement of other peoples’ rights. Turning to the alleged acts of anti-union discrimination in access to employment, Article 11(2) of the Constitution provided that all persons were equal and enjoyed the same rights, duties and opportunities, and were therefore protected against any form of discrimination. The constitutional rule, which was applicable in possible cases of anti-union discrimination, was given effect by section 452 of the Labour Code, which sought to guarantee the exercise of the right to organize by establishing an increased compensation for summary dismissal, as well as guaranteeing the continuation of the process of forming the labour organization that was being established. The purpose of removing Article 29(3) from the Constitution was to ensure and to unify the legal framework protecting workers, thus ending the hateful distinction between wage earners and public servants which divided and differentiated physical and intellectual effort. Its objective was the protection of all public servants so that, with the entry into force of the new regulations, they would all be covered by the LOSEP, the benefits of which were broader than those of the Labour Code. They included the right to annual leave of 30 days, which was double the 15 days provided by the Labour Code. On the establishment of trade unions, she recalled that, while 2,178 worker organizations had been registered between 1961 and 2007, 1,001 had been registered since 2007. Those figures were a clear indication of the opportunities to organize in the country.

The intention of the Constitutional Assembly with regard to the reforms had not been to negatively affect the trade union movement or collective bargaining in the public sector, but to avoid the perpetuation of the abusive practices of certain minority higher-level workers’ organizations, which generated inequality for the vast majority of Ecuadorian workers by accruing disproportionate privileges and benefits. A key point to bear in mind was that little more than a year before, the Act on labour justice and the recognition of household work had entered into force, which not only updated several provisions of the Labour Code, but also extended labour protection to vulnerable actors in the tripartite relationship. The main aim of the Act was to bring labour legislation into line with reality and make it as consistent as possible with the Conventions ratified by Ecuador. She welcomed the 2016 report of the Committee of Experts, which indicated that “its opinions and recommendations” were “non-binding, being intended to guide the actions of national authorities” and that they were “persuasive” in nature. She agreed with the comments of the Committee of Experts on the value of opinions and recommendations and considered that, although their application was not mandatory, they provided precious guidance to be taken into account. Lastly, she said that she had taken due note of the statements made by the representatives of the Employers and Workers and that their messages would be forwarded to the Ecuadorian labour authorities, who maintained an open attitude to dialogue, which they considered as the basis for good tripartite relations. Ecuador had appeared before the Committee willing to listen to the social partners and felt strengthened by the discussion that had taken place. It did not take the view that it had been subjected to criticism, but to a democratic exercise of tripartite dialogue, even in the face of the adverse conditions resulting from a natural phenomenon beyond the State’s control.

The Worker members said that the Government had shown neither consideration nor respect for the rights of workers in the public sector, particularly the fundamental right to collective bargaining, and for the ILO’s supervisory system. Although it had on several occasions received guidance on compliance with the Convention, as well as technical assistance from the Office, the Government had chosen to do precisely the opposite. Furthermore, in 2016 the Government had not appointed any workers to attend the Committee to express their views on the case, which was a clear violation of the ILO Constitution. Ecuador was far from complying with the Convention. The main amendments to the Constitution and labour laws had been adopted without consulting the trade unions. When trade unions and workers took action to express their opposition to the reforms, they had been met with teargas and in many cases had been detained or imprisoned. The Worker members were very worried about the serious anti-union climate in Ecuador and called on the Government to immediately take the necessary measures to bring an end to the constant attacks on workers and trade unions. They also urged the Government to meet the trade unions, which had already drafted and submitted specific proposals on how to comply with the Convention. Taking fully into account the observations of the Committee of Experts, they urged the Government to engage in a process of social dialogue to: (i) establish a clear timetable and process for bringing the Constitution into line with the Convention; (ii) amend the LOSEP and the LOEP to ensure that all workers, with the possible exception of persons who exercised authority in the name of the State, enjoyed the right to organize and bargain collectively in accordance with the Convention; (iii) amend section 221 of the Labour Code so that, when there was no union whose membership comprised more than 50 per cent of the workers, minority trade unions could, on their own or jointly, negotiate on behalf of their members; (iv) bring an end to the practice known as the “compulsory purchase of redundancy”; and (v) repeal Ministerial Orders Nos 80 and 155, which allowed clauses in public sector collective agreements to be declared “abusive”, a power that should only be exercised by the judicial authorities. They also urged the Government to cease all acts of violence and intimidation against trade unionists, refrain from making statements that discredited trade unions and accept a high-level tripartite mission to examine the issues raised by the Committee of Experts in its report and to devise a plan to address them without delay. Finally, in view of the seriousness of the case and the Government’s failure to appoint Workers’ delegates, they called for the conclusions on this case to be included in a special paragraph of the Committee’s report.

The Employer members thanked the Government for the information it had provided. In their view, collective bargaining could not be replaced on the grounds of greater benefits would accrue. They requested the Government to provide updated information on the situation regarding the amendments to the Constitution and on their impact on the legal aspects of the case. Before amending the law in any way and to ensure that any legal texts adopted complied with the approved constitutional amendments and the Convention, they called on the Government to launch a consultation process with the most representative employers’ and workers’ organizations. They reminded the Government that it could in any case avail itself of ILO technical assistance to conduct such consultations and the subsequent legislative reform.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee welcomed the information provided by the Government and asked it to provide additional information on the state of the situation in relation to the constitutional amendments and on their impact on the legal aspects of the case.

Taking into account the discussion of the case, the Committee requested the Government to:

• - initiate a process of consultation with the most representative employers’ and workers’ organizations prior to any amendment to the law, in order to bring all the relevant legislations into compliance with Convention No. 98;
• - amend the LOSEP and LOEP so as to ensure that all workers, with the possible exception of persons engaged in the administration of the State, enjoy the right to establish trade unions and to bargain collectively in accordance with the Convention;
• - repeal Ministerial Orders Nos 00080 and 00155 which allow clauses in public sector collective agreements to be qualified as abusive, an authority which should come only within the purview of the Judiciary;
• - accept a programme of ILO technical assistance in conducting the consultations referred to above and the subsequent legislative reform;
• - ensure that collective bargaining can be exercised in a climate of dialogue and mutual understanding.

The Committee deeply regrets that the Government failed to accredit a tripartite delegation to the Conference to enable a tripartite delegation to register for the discussion of its case before this Committee. The Committee refers the Government to article 3 of the ILO Constitution.

The Government representative took due note of the Committee’s conclusions and said that they would be sent to the Government for consideration.

Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



A Government representative said that Ecuador’s commitment to respect and observe international labour standards dated back to when it joined the ILO in 1934. It had ratified 61 ILO Conventions, including Convention No. 98 and, most recently, the Workers with Family Responsibilities Convention, 1981 (No. 156), and the Domestic Workers Convention, 2011 (No. 189). She emphasized that, with the adoption of the Constitution in 2008 by way of a majority vote by the people of Ecuador, a new set of social policies had been established based on the ancestral Andean philosophy of Sumak Kawsay, or living well, which were geared to ensuring basic needs and life in harmony with nature. From that perspective, economic growth should be achieved taking into consideration a fair distribution of wealth. As such, priority had been given, not to the payment of foreign debt, but to the payment of social debt, and the 8 per cent fall in poverty between 2007 and 2011 had been achieved on the basis of the implementation of a national system for inclusion and social equity which respected diversity, prohibited discrimination of any kind and facilitated the full enjoyment of human rights, particularly the rights to work, food, health, housing and education. The progress made had enabled her country to be a benchmark for achievements in terms of plans for people with disabilities, action against child labour, and in particular, by its worst forms, environmental protection, reduction of extreme poverty and improved wealth distribution. In order to attain these objectives, a socio-economic inequalities atlas had been published, with the support of 12 bodies related to the United Nations. She added that the Constitution established the right to decent work and rights such as the workers’ right to organize without prior authorization. Alongside the Constitution, specific measures had been adopted in the labour sphere, with the aim of overcoming disparities between workers who, although carrying out the same work for similar hours of work, were not entitled to the same remuneration or the same social benefits. A mandatory social security system had been introduced, as well as better wages with the change in the production model. Better training for workers had also been promoted with a view to enhancing their options for earning higher wages.

Efforts had been made to developing a new Labour Code that better reflected current realities and was more in line with the international Conventions ratified by Ecuador. The draft had been developed with the ILO’s participation and had been submitted to the National Assembly on 1 May 2014. The articles had been structured along the lines of Convention No. 98, with the emphasis on the organization of workers and the establishment of trade unions, in the context of freedom of association. Its provisions included the following: prohibition of any act that obstructed workers in the formation of trade unions; prohibition for employers to terminate a contract of employment while the worker was on leave; prohibition of any type of act aimed at restricting or undermining workers’ rights to organize, and also of interference in the establishment, administration or support of workers’ organizations; and guarantee of collective contracts as a way to improve, inter alia, conditions of work in terms of wages, occupational safety and health, food and hours of work. The draft new Labour Code was progressive in establishing new types of unions and unionization by sector. Workers would be better represented and their rights would be more effectively guaranteed. Regarding the reinforcement of trade unionism, she said that the number of trade union registrations had significantly increased to 479, which represented a 300 per cent increase over the number established in the previous decade. The current Labour Code established the right to collective bargaining. However, collective bargaining agreements in certain public sector bodies contained clauses providing for excessive benefit, which created a privileged situation for the workers concerned amounting to a clearly unfair and discriminatory situation vis-à-vis other workers in similar conditions in the public sector. The magnitude of those benefits could be appreciated by referring to 363rd Report of the Committee on Freedom of Association on Case No. 2684, paragraph 555 of which indicated that one of the complainant organizations had alleged the unjustified dismissal of some 300 workers of a State enterprise, and paragraph 556 stated that those workers were claiming the compensation due to them (US$200 million), as well as compensation for the damages caused). She emphasized that with a view to overcoming such imbalances, the Constituent Assembly, responsible for the drafting of the Constitution in 2008, had promulgated Constituent Resolutions Nos 2, 4 and 8, which had absolute legitimacy, as they had been promulgated on the basis of the people’s will expressed by means of several popular votes. Ministerial Orders Nos 00080 and 00155 did not restrict either collective bargaining or freedom of association. On the contrary, they contained standards, regulations and parameters for negotiation and above all they sought the full application of universal human rights principles, the upholding of equity and equality in the enjoyment of rights, and the application of the constitutional principle of equal pay for work of equal value. Lastly, she invited the ILO to send a technical cooperation mission, similar to the one received from 15 to 18 February 2011, details and objectives of which would be defined in due course.

The Employer members said that the present case relating to a fundamental Convention had been examined in 1987 and 1999. In 2013, the Committee of Experts had made several observations. In relation to Article 1 of the Convention on protection against acts of anti-union discrimination, it called for a specific provision guaranteeing such protection in the private sector. Regarding Article 4 on the promotion of collective bargaining, there was a need to amend section 229 of the Labour Code so as to allow minority trade union organizations, on their own or jointly, to submit draft collective agreements. The systemic nature of the Labour Code meant that any reform needed to involve meetings with tripartite bodies so as to ensure that reform was comprehensive. In the public sector, the new legislation did not provide for penalties for acts of anti-union discrimination or interference, and classified as public servants the great majority of workers in that sector, thereby denying them the right to collective bargaining. They referred to Decree No. 225 of 2010, which enabled the Ministry of Industrial Relations to unilaterally revise collective contracts applicable to workers in the public sector; the Basic Act on Higher Education (LOES) of 2010; and the Basic Act on Intercultural Education (LOEI) of 2011, which did not recognize the right of public employees in the education sector to engage in collective bargaining. They called on the Government, in consultation with the employers and workers, to take into account those observations aimed at amending legislation and to send a report on developments on this matter. They added that the Committee on Freedom of Association had referred to the Committee of Experts the examination of the legislative aspects of Case No. 2926 regarding allegations of many anti-union dismissals which were carried out in the public sector through the procedure known as the “compulsory purchase of redundancy”, established under Executive Decree No. 813. The Employer members endorsed the recommendations of the Committee on Freedom of Association in paragraph 391 of the 370th Report and reproduced below:

(a) Emphasizing that the principle of adequate protection against acts of anti-union discrimination is fully applicable to public employees and workers, the Committee requests the Government to carry out an independent investigation, without delay, into the alleged anti-union character of the various dismissals and terminations specified in the complaint. If these allegations are found to be accurate, the Committee requests the Government to take the necessary steps to rectify the anti-union discrimination and to re-employ the victims. The Committee requests the Government to keep it informed of the measures taken in this respect, and of their outcome.

(b) The Committee requests the Government to ensure that the trade unions are consulted on the implementation of Executive Decree No. 813 with the view, inter alia, of avoiding any non-compliance with provisions of collective agreements and preventing any occurrence of anti-union discrimination. In this respect, the Committee requests the Government to ensure that such consultations provide for the need to take measures, including legislative and regulatory measures if necessary, to introduce effective sanctions in the event of anti-union terminations and dismissals in the public sector.

(c) As regards the various judicial proceedings initiated against the adoption and implementation of Executive Decree No. 813, the Committee requests the Government to keep it informed of their outcome, and expects that the courts will pay due heed to the principle of protection against anti-union discrimination.

The Worker members recalled that the Committee of Experts had been commenting on the present case for over 20 years, without any tangible result. The present Committee had also examined the case in 1985, 1987 and 1999 and, in particular, it had focused on the issue of conformity of national legislation with Convention No. 98 and on anti-union practices that went against the promotion of voluntary and free collective bargaining. Despite the 2008 amendment to the Constitution, certain questions remained in suspense. Many trade unions had been closed down, union leaders had been dismissed and the collective representation of workers had been abolished. Certain practices had led to the destruction of the free union movement. Instead of workers’ organizations, the Government had set up citizens’ associations, such as the Citizens Labour Council, which had replaced the National Labour Council (a tripartite body), thereby denying the representativeness of workers’ organizations and their specific competence regarding the defence of workers’ rights. The new Constitution guaranteed workers the right to join a trade union without prior authorization and the freedom to carry out union activities. However, in practice, the exercise of those rights was hindered by many obstacles: in the private sector, a minimum of 30 workers was required in order to establish a trade union, which deprived a million workers of the possibility of exercising their rights since 60 per cent of enterprises employed fewer than 30 workers; and a trade union was only recognized if it gathered 30 signatures of founding members and submitted them to the employer. With regard to the public sector, the Constitution limited the right to establish trade unions and to negotiate in full freedom, by providing for the representation of workers by a single organization only, namely a single central committee composed of over 50 per cent of employees, which excluded minority unions. The Government had announced that the conditions of service of public sector employees would be standardized under one legal status under “administrative” law, which would indirectly put an end to the right to join a trade union or negotiate in the public sector. The majority of public sector workers would fall into the category of “public officials” and would thereby be denied the right to collective bargaining. It appeared that the new draft law had not been subject to consultation with the social partners. They recalled that since 2008 the main requests of the Committee of Experts covered: the amendments of several laws, of the chapter on labour of the Constitution and of certain ministerial agreements; the reinstatement of union leaders who had been removed from their functions; the need to conduct independent investigations into allegations of anti-union practices; and consultation with workers’ organizations.

Regarding the education sector, they referred to several serious cases of anti-union discrimination which had resulted in the imprisonment of the persons concerned: Mery Zamora, former President of the National Confederation of Education Workers of Ecuador had been sentenced to eight years in prison for sabotage and terrorism for the mere act of carrying out her mandate as President of the union; Luis Chancay had been removed from his post as a teacher for having carried out his functions as President of the National Union of Educators in the Province of Guayas; Carlos Figueroa from the Ecuadorian Medical Federation had been sentenced to six months in prison for having allegedly insulted the Government of the day; Clever Jimenez, Sisa Pacari, Mariana Pallasco and many others had been arrested and detained arbitrarily. They insisted on the need for the Government to bring its legislation into conformity with the Convention. The refusal of the Government to consider the urgent need to restore freedom of association and the right to collective bargaining of workers in the private and public sectors undermined the image of the country in other organizations, such as the World Trade Organization and the Human Rights Council.

A Worker member of Ecuador, referring to the decisive contribution of the workers’ movement in the history of Ecuador said that for the workers it was all about weakening an oppressive system and severing ties with those who undermined social cohesion, exploited workers, exacerbated unemployment and precarious employment and encouraged the unfair distribution of wealth. Ecuador had suffered repeated currency devaluations, constant increases in fuel prices and public utility rates, restrictions on public spending, wage adjustments, with their severe impact on the informal economy, the deterioration of the production system and the dismantling of the State and of the whole of the national regulations and control system. That in turn had led to millions of Ecuadorians having to leave the country, the collapse of the national currency and ultimately the banking crisis and the adoption of a rescue package, which had provoked the biggest political crisis in the country’s history. He said that it was still difficult to speak of substantial changes in the country. However, the new Constitution continued to provide the workers with the means of establishing forums for dialogue in these uncertain times. While not a workers’ government, the present Government did at least enjoy national legitimacy, and there had been significant progress in education, health, housing, infrastructure, fuel policy and tax reform. In labour matters, however, there was no clear strategy for a national policy with the involvement of the workers, and workers were seriously threatened by dismissal and by administrative measures. He added that the draft new Labour Code, which had been submitted to the National Assembly, did not correspond to the needs or interests of the workers, but rather to those of the employers. The Constitution and ILO Conventions emphasized that labour rights were irrevocable and intangible, but the present Government sought to eliminate such rights as collective bargaining, the right to strike and pensions financed by employers. The national trade union movement therefore called for the draft to be replaced by a text reflecting the workers’ aspirations. It was essential for the underemployment rate to be significantly reduced, and for productivity and land distribution to be improved. In short, what was needed was to combat poverty, to support regional governments in their efforts to find new ways of combating injustice, social inequality and the imbalance between peoples and countries, and to eradicate hunger and poverty. A combined effort was needed to devise a new financial system and wage policies designed to introduce a fair minimum wage for each region. That should prevent workers from being exploited and employed on precarious contracts. Measures were required to eliminate all forms of child labour and exploitation and to enable young people and women to join trade unions. Trade union action in defence of agricultural workers and Ecuadorian communities abroad needed to be strengthened. Finally, given the abusive dismissal of workers in the public sector and elsewhere, and the fact that a new Labour Code was currently being drafted, he emphasized the need for the ILO to follow up the situation and make its observations on the spot, so that the complaints raised in the present Committee could be verified impartially.

Another Worker member of Ecuador observed that Ecuador’s Constitution provided, among its fundamental precepts, that development should be based on the creation of dignified, and stable work. Development therefore needed to guarantee all workers employment, a fair wage, health and safety at work, stability and social security. Collective bargaining processes had suffered heavily since the fragmentation of the trade union movement. Eight trade union federations existed for fewer than half a million organized workers, and of the 4.5 million Ecuadorians who had the right to belong to trade unions, only 2 to 3 per cent were actually members, most of them in the public sector. Unionization hardly existed in the private sector, which meant that there was no collective bargaining. Various aspects of collective bargaining had been abolished by constituent resolutions and executive decrees. Collective contracts had been reviewed, and in the process the Government had proposed to treat public sector institutions in the same way, meaning that currently certain rights were no longer discussed individually, and wages were tied to inflation. Section 229(3), provided that “public sector workers shall be subject to the Labour Code”, from which it could be clearly inferred that workers whom the Ministry of Industrial Relations classified as career public servants and who worked in public enterprises, were not covered by collective agreements and enjoyed hardly any of the rights that the Constitution considered to be inalienable and intangible. That created inequality before the law and seriously jeopardized the future of trade unions, as at least 60 per cent of unionized workers were subject to that system. He called on the Committee to recommend in its conclusions that the Government should fully respect the right to organize and the right to collective bargaining. On 1 May 2014, a new draft Labour Code had been submitted, which sought to establish a single labour system in the public sector, as a result of which all public sector workers would be excluded from labour legislation, thereby definitively eliminating unionization, collective bargaining and the right to strike for that sector. Finally, he requested the ILO’s technical assistance to ensure that the new legislation would contain elements of social justice and equity for all workers, supervisory mechanisms to guarantee decent conditions of work, job stability and strict compliance with workers’ rights, without any kind of discrimination.

The Employer member of Ecuador said that the request of Committee of Experts to amend section 229 of the Labour Code dealing with the submission of draft collective bargaining texts so that minority trade unions whose membership did not comprise more than 50 per cent of the workers covered by the Labour Code could negotiate on behalf of their own members only addressed part of the problem. The objective of the provision was that employers’ and workers’ organizations needed to be genuinely representative, since the submission of draft agreements could result in a situation where it was a non-representative minority of workers which instigated a collective dispute. If the Legislative Assembly were to agree to the Committee’s suggestion, it would have to reform the whole system of collective bargaining so as to avoid trade unions competing against each other in public and private enterprises and discussing issues that were not of interest to the workers they represented. Neither Convention No. 87 nor Convention No. 98 specified a minimum number of workers for establishing trade unions, yet the ILO Constitution and other instruments referred to the “most representative organizations” as having a role to play in various situations. In its report, the Committee of Experts stated that Constituent Resolutions Nos 002 and 004 and Executive Decree No. 1406, by setting a ceiling on remuneration in the public sector and excluding a series of matters from collective bargaining, were incompatible with the Convention. The same applied to Resolution No. 8 and to other instruments, inasmuch as the prevention of certain abuses in the clauses of collective contracts signed by public bodies or enterprises was a matter not for the administrative authority, but for the judicial authority. Those who represented State institutions in negotiations on collective contracts had to be competent people who would handle the issue with the sense of responsibility and due care of those dealing with the money of others, especially when the resources belonged to the community as a whole. However, Employers agreed that the right way to go about things was to abide by the legislation in force, on a case-by-case basis. It was for the competent judicial authorities to prevent or correct excesses or to make sure that wage demands in public institutions that belonged to the nation as a whole were accepted. With regard to the hope expressed by the Committee of Experts that, in consultation with the most representative employers’ and workers’ organizations, the Government would amend the provisions in question, as well as revise the Labour Code as a whole, the employers agreed with the principle that legislative reforms should indeed be conducted in consultation with the most representative social partners, in accordance with the ILO Conventions that Ecuador had ratified. He therefore looked forward to the establishment of the institutions that the ILO had helped to design, such as the Labour Board, which had not yet been convened for its members to examine the draft Labour Code currently before the legislature. Employers were willing to join Workers and the Government in creating an environment in which they could reach solutions by consensus to provide the country with a set of modern standards for promoting employment.

The Government member of Costa Rica, speaking on behalf of Group of Latin American and Caribbean Countries (GRULAC), referred to the progress that had been made in several labour areas in Ecuador since the adoption of its Constitution in 2008, which as a whole, had benefited the workers and their families. The measures adopted were based on respect for human rights and the pursuit of equality and equity for citizens in the exercise their rights, including the right to equal pay for equal work. Regarding the application of Convention No. 98, through the Ministry of Industrial Relations, the Government had, since 2007, encouraged the development of a stronger trade union movement in both the public and private sectors. Some 479 labour organizations had been registered over the period, 300 per cent more than over the preceding decade. The Government had responded to the Committee of Experts’ comments and observations and, where the Committee of Experts had identified outstanding issues, those would be covered by the new Labour Code which, according to information supplied by the Government, was currently being drafted with the assistance of the ILO and of the social partners along the lines set out in Convention No. 98. She trusted that the Government would continue to pursue labour policies that satisfied domestic labour standards and the principles embodied in the ILO Conventions in force.

An observer representing Public Services International (PSI) indicated that in 2009 a delegation of the National Coordinating Body of Public Trade Unions had lodged a complaint concerning regressive labour policies in the public sector. Five years had passed since then and the smear campaign of the public sector trade unions, their leaders and their achievements was continuing. Evidence of that was in the statement made by the Ministry of Industrial Relations during an interview, indicating the fear that the corporate sector might have of the unionization of workers, which could be on account of the unions that existed previously. The trade union organizations of public sector workers no longer had much influence. Public sector workers were committed to social change, justice, equality, equity, democracy and the life of people. What had been considered in 2009 as “isolated facts”, today appeared as part of the steadily regressive State policy which had deepened and affected the right of the population to public services of quality. He called for a high-level tripartite mission to be sent to the country to verify in situ the situation of trade union rights in the public sector and the potential risk of further regression in labour matters in the private sector, and to establish institutional, permanent and representative dialogue with technical assistance from the ILO to comply with the observations and recommendations of the Committee on Freedom of Association.

The Employer member of Mexico endorsed the fundamental importance, emphasized by the Committee of Experts, of proceeding in the context of the draft legislative reform, with the real and effective consultations with the most representative organizations of workers and employers. However, he did not support other observations of the Committee of Experts. The request of the Committee relating to the amendment of section 229 of the Labour Code concerning the submission of draft collective agreements did not consider that, in Ecuador, there were two forms of organizations: (1) work councils, composed of workers of the company who could conclude corresponding collective agreements with the employer; and (2) unions formed by diverse workers, including those working in the company in which they intended to conclude a collective agreement. In the latter case, majority representation was required. The opposite would mean the possibility of destroying the representation of workers, which would have negative effects and would complicate the administration of collective labour relations. The legislation in question did not impede the participation of more than one union and one employer in the conclusion of a collective agreement, but rather imposed order and protected the will of the workers so that they could choose the form of organization best suited to their interests. The opinion of the Committee could lead to a situation in which all workers would be subject to an agreement concluded by a minority and which could give rise to the formation of organizations that did not necessarily serve the interests of workers, but had the right to negotiate collective agreements, which would be contrary to Article 2(2) of Convention No. 98 and the principle of non-interference. Under those conditions, the conclusions of the Conference Committee should not support the recommendations of the report of the Committee of Experts. He also referred to the principles set forth by the Committee on Freedom of Association and, in particular: the distinction between representative unions and other unions; the entity of the “exclusive bargaining agent” with responsibility for negotiating of the collective agreement; and the rules on majority representation in collective bargaining.

An observer representing Education International indicated that teachers in Ecuador were covered by the Basic Act of the Public Service and the Basic Act of Intercultural Education, which did not include the right to organize and bargain collectively. Only 6.6 per cent of public employees were unionized and had the formal right to bargain collectively. Through new decrees, the Government was preventing unions from expressing their fundamental functions. The right to deduct union dues had been eliminated in August 2009 by ministerial decree. In September 2009, trade union leave had been abolished and the leaders were prohibited from admission into educational institutions. Executive Decree No. 16 of June 2013 intensified governmental interference in social and union organizations and imposed financial requirements which were impossible to attain. The Decree had been denounced as unconstitutional. In May 2014, the National Confederation of Education Workers (UNE) had been notified by the Ministry of Education that it would not continue to register the new union leadership until the requirements of the Decree were met. She referred to other cases of teachers sentenced to prison for their union activities and indicated that about 1,385 teachers had been dismissed.

The Employer member of the United Kingdom took note of the problems in the application of the Convention indicated in the observation of the Committee of Experts, including the list of public servants who were excluded from the right to collective bargaining which went beyond the exclusions allowed under Article 6 of the Convention. That Article, which needed clarification, provided that the Convention did not deal with the position of public servants engaged in the administration of the State or prejudice their rights or status in any way. Paragraph 172 of the 2012 General Survey concerning the fundamental Conventions referred to the need to distinguish between public servants who might be excluded from the scope of the Convention, and all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. Examination of the observation of the Committee of Experts revealed that there were different views on that distinction. It was a matter for the Government to decide, as the employer of public servants, whether to bargain collectively with public servants engaged in the administration of the State. Concerning the need for clarification, the Standards Review Mechanism should be implemented as a matter of urgency.

An observer representing the Confederation of University Workers in the Americas (CONTUA) indicated that, according to official statistics, some 185,000 public sector workers had been dismissed between June 2008 and June 2012, and that the figure was still rising. The dismissed workers included hundreds of union leaders and militants who, under various pretexts, had been denied their right to represent the workers and to engage in trade union activities. In fact, they had been dismissed simply for carrying out their union duties. Freedom of association was being systematically violated by repeated anti-union dismissals in the public sector. He cited specific examples of union leaders being dismissed, adding that, to do so, the Government had resorted to a legal device known as “compulsory resignation”, a euphemism for their arbitrary dismissal. The situation was liable to deteriorate even further in the months ahead because the Government was planning to adopt a new Labour Code that had not been discussed with the trade unions. Moreover, some of the acquired rights of public servants had been removed recently, even though they had been passed into law. He called for urgent action in the form of a direct contacts mission to promote social dialogue, resolve industrial disputes in accordance with the law, halt the dismissal of union leaders and create machinery for resolving current and future disputes.

The Government member of the Plurinational State of Bolivia supported the statement made on behalf of GRULAC and welcomed the Government’s efforts to support and strengthen the exercise of labour rights by workers and trade unions. The alignment of substantive labour standards with the new Constitution adopted in 2008 was a process which was accompanied by a series of social measures to benefit workers and society as a whole. It was significant that the measures and actions carried out by the Government had contributed to the establishment of new trade unions in recent years. The request for ILO technical assistance regarding labour law reform was important in bringing national standards into line with workers’ fundamental rights and promoting measures of equality and equity in full cooperation with the social partners.

The Worker member of the United States said that the regressive labour reform, which had begun in 2007 concerning public sector workers, now risked extending into the private sector, as was evidenced by the proposed new Labour Code. That proposal incorporated regressive legislation that had greatly reduced the collective bargaining rights, practices and coverage in the public sector over the last seven years, directly contradicting the overall observations and recommendations of the Committee on Freedom of Association and the Committee of Experts. Compared to the terms of Convention No. 98, the provisions of the draft law: (1) did not adequately safeguard and protect the exercise of freedom of association, the right to organize, bargain collectively and take collective action, such as strikes, and did not provide for sanctions against employers to prevent repeat offences; (2) failed to provide protection against acts of anti-union discrimination and to extend the right to collective bargaining to different classes of workers; (3) failed to penalize employers or public authorities which practiced or promoted acts of anti-union interference, although it equipped those who sought to interfere with union organization; (4) reduced union autonomy by setting lengthy and excessive financial and bureaucratic requirements to create and register unions and denied due process in legal status procedures; (5) eliminated the right to strike in the public sector and declared sympathy strikes to be illegal, while expressly precluding the right to voluntary negotiation; and (6) did not include the workers’ input despite the Government’s claim to have consulted the social partners pursuant to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). He requested ILO assistance in ensuring that civil society had the requisite time and expertise to evaluate those proposals.

The Worker member of Brazil said that the case of Ecuador before the Committee provided the opportunity for an international tripartite discussion. The classification of public servants as workers engaged in the administration of the State was an old definition which, in the case of Ecuador, removed them from the scope of labour law and placed them under administrative law. The legislation that governed public servants did not recognize their right to organize or to engage in collective bargaining. According to the ILO General Survey of 2013 on labour relations (public service) and collective bargaining in Ecuador, public employment accounted for 10 per cent of the workforce (nearly 600,000 workers). Of those, 125,000 were manual workers and only 40,000 belonged to a trade union. The other 475,000 were career public servants, organized in employees’ associations, and public servants on casual service contracts and other forms of precarious employment, which implied that only career public servants were members of branch federations and confederations, and that most of those workers could not legally belong to another organization. The figures showed that barely 6.6 per cent of public workers to date were unionized and had a formal right to engage in collective bargaining. It also meant that already constituted organizations, whether unions or associations, had been prevented from fulfilling their mandate of defending the rights of their members. That policy was reflected in the adoption of provisions that ruled out the possibility in practice of establishing independent organizations, in arbitrary interference in the exercise of that right, in the promotion of the establishment of parallel workers’ organizations, in the compulsory dissolution of certain workers’ organizations, or in the indirect obstruction of organizations’ activities, for example through changing check-off criteria or refusing to provide premises or authorize the participation of workers in meetings and other union activities during working hours. Executive Decree No. 16 of June 2013 issuing the regulations for the operation of a consolidated information system for social and citizens’ organizations and Ministerial Order No. 130 of August 2013 issuing regulations for labour organizations denoted a tightening of government control in social organizations in general, and in workers’ organizations, in particular. Hence, there was a need for a direct contacts mission and for the establishment of a standing dialogue forum for dialogue to ensure a fairer future and the full participation of all Ecuadorian workers.

The Worker member of the Bolivarian Republic of Venezuela emphasized that he supported the claims of the Ecuadorian workers who had been unjustly dismissed. Similarly, he offered the support of the Venezuelan workers in drafting the new Labour Code, which should be an instrument arising from social dialogue that acknowledged the aspirations of the Latin American working class. Finally, he stated his willingness to create bridges of communication with the Government.

The Government representative welcomed the support from Costa Rica as coordinator of the 34 countries that comprised GRULAC. She also thanked the delegations that had expressed their intention of sharing information on subjects related to Convention No. 98. The Government fully concurred with the Committee of Experts’ statement in paragraph 31 of the introduction to its 2014 report to the effect that “its opinions and recommendations are non-binding, being intended to guide the actions of national authorities” as they held a “persuasive” value, and it recognized that the Committee’s opinions did indeed provide valuable guidance even though they were non-binding. With regard to the comments she had heard, particularly from the Worker members, during the Constituent Assembly in charge of preparing the 2008 Constitution, the Ecuadorian people’s objective in issuing Constituent Resolutions Nos 002, 004 and 008, which were at the root of the complaints against Ecuador, was not concerned with the trade union movement or with collective bargaining in the public sector, but was rather intended to prevent the continuation of the abusive practices of certain minority higher-level workers’ organizations which were the source of inequality among the vast majority of Ecuadorian workers. Ecuador was engaged in full discussion of the new Labour Code, the first draft of which had been submitted to the National Assembly on 1 May 2014 in commemoration of Labour Day. The purpose of the new Code, which had been drafted in cooperation with the ILO, was above all to introduce labour standards that corresponded with present-day realities and in greater conformity with the international standards ratified by Ecuador. The desire of employer and worker representatives desire to be more directly involved in the discussion would be passed on to the country’s labour authorities, which were open to dialogue. The Government had responded to the appeal by the social partners with a readiness to listen to what they had to say and felt strengthened by the discussion in the Conference Committee. It therefore did not consider that it had been the object of criticism, but rather that it had been party to the democratic exercise of tripartite dialogue. In keeping with the transparent approach that the country had adopted in the process of reform and in its efforts to improve its social policies, in general, and its labour policies, in particular, she invited a new ILO technical cooperation mission to visit Ecuador, as it had in 2011.

The Worker members thanked the Government representative and other speakers. The case was long-standing and serious, as evidenced by the violence against trade unionists and by the growing trend to criminalize the exercise of trade union rights. This year again, the Committee of Experts had noted multiple cases of violations of trade union rights in Ecuador, in both the private and public sectors: many unions had been eliminated, union leaders dismissed, collective representation cancelled and measures were practiced which tended, in fact, to destroy the free and pluralistic trade union movement. It was urgent to oppose the new draft Labour Code which, if passed as it was, would eliminate trade union action and the right to collective bargaining. The Government needed to stop continuing on that path and engage in a constructive dialogue with those concerned, in particular with trade unions, whose rights and freedoms in training, operation and administration were re-established. It was essential that technical assistance from the Office, as it had requested it. In this regard, the Worker members agreed with the suggestion of the Employer members to propose a direct contacts mission. Time was pressing since the adoption of the new Labour Code was scheduled for the end of August 2014.

The Employer members made the following observations: (a) protection against acts of discrimination required specific legislation; (b) the legislation did not provide for penalties for acts of discrimination or interference in the public sector; (c) Decree No. 1406 established wage ceilings in the public sector and excluded certain issues, which went beyond the provisions of ILO Conventions; and (d) within the framework of Ministerial Order No. 0080 and Order No. 1551, the determination of the abusive nature of clauses in collective agreements in the public sector should be carried out by the judicial authorities. Those issues required legislative reforms, which should be undertaken adopting an integrated and systematic approach, on a tripartite basis, in consultation with the most representative workers’ and employers’ organizations and in compliance with ILO Conventions. The new Labour Code should specify the requirement to hold consultations with the most representative groups of employers and workers, especially for amendment of the legislation. Those consultations should be real and effective, and merely communicating the bill to the organizations was not enough. The Employer members did not share the Committee of Experts’ opinions with respect to the following points: (a) the restrictive interpretation of Article 6 of Convention No. 98 which, according to the Employer members, allowed governments to exempt specific public officials from the application of the Convention; and (b) section 229 of the Labour Code respecting the submission of draft collective agreements by minority trade unions should not be amended, as the provisions of Conventions Nos 87 and 98 did not set thresholds in that respect. They thanked the Government for accepting a direct contacts mission to address issues related to Convention No. 98 and emphasized the need to amend the corresponding legal provisions comprehensively and systematically in tripartite consultations with the most representative workers’ and employers’ organizations in order to respond to the observations of the Committee of Experts on compliance with Convention No. 98. The Government was also asked to provide information on progress made to the next meeting of the Committee.

Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

The Government has supplied the following information:

During the workshop-seminar on international labour standards and their application in Ecuadorean law, organized from 17-18 February 1999 in Quito, under the auspices of the ILO Regional Office in Lima, there was a significant dialogue as well as a rapprochement between the deputies of the National Congress attending the event and the Minister of Labour and Human Resources. The possibility of communicating to the Congress a draft law revising the Labour Code and related laws was raised, in particular as concerns Conventions Nos. 87 and 98.

A new Constitution entered into force on 10 August 1998 resulting in a reinterpretation of all national legislation and an ongoing reform process. In light of the new Constitution and the results of the aforementioned workshop-seminar, the Minister of Labour and Human Resources collected and updated proposals for two draft reforms prepared in the context of the technical assistance mission (4 to 10 September 1997) to bring the legislation into conformity with the provisions of Conventions Nos. 87 and 98. Thus, exemptions and modifications are planned regarding certain legislative provisions criticized in observations and direct requests from the Committee of Experts, since the Government has already undertaken to implement the technical directives suggested by the ILO.

It is important to emphasize that certain suggested reforms will be routed alternatively as the length of the examination of the reforms by the Congress remains undetermined. As in the past the ILO will be informed as soon as the results of these various initiatives are known.

Argumentation

Since its entry into force on 10 August 1998 the Constitution sets forth the protection that the State owes to the worker, its attachment to the principles of social law, the intangibility of workers' rights, and, in particular, as is set forth in paragraphs 6 and 9 of article 35 which set forth respectively: "In case of doubt on the extent of legal, regulatory or contractual provisions as regards labour, these shall be applied in the manner most favourable to workers"; "The right of workers and employers to organize is guaranteed, as well as their free development, without prior authorization and in conformity with the law." The right to freedom of association is an inalienable principle and even in case of doubt in legal terms it must be defended and promoted by the State.

The harmonization of national legislation with a view to bringing it into conformity with the provisions of ratified international labour Conventions is an obligation from the time the Government joined the ILO and ratified the Conventions in question. This remains in practice a necessity according to the comments sent to the Government by the Committee of Experts concerning the failure to respect these Conventions. In this perspective, Conventions Nos. 87 and 98, which set forth rights and principles applicable to employers and workers would tacitly derogate, by virtue of article 163 of the Constitution, from various articles of the national Constitution and would entail the obligation to modify other articles. Thus, the provisions of these Conventions must be explicitly incorporated into the national legislation.

For the aforementioned reason, the Government presents the following draft of the law revising the Labour Code to ensure conformity of national legislation to current necessities and requirements.

Proposal for the revision of the Labour Code

Art. 1: Following article 452 of the Labour Code, the following paragraph will be inserted:

"Following communication of the refusal of official registration, a request for legal verification can, within 30 days, be filed with the competent legal authorities."

Art. 2: Article 466, paragraph 2 of the Labour Code, will include the following paragraph:

"In case of refusal to approve the works committee because of provisions contrary to the Constitution or to laws, the regulation will be as indicated in article 452."

Art. 3: Article 454, paragraph 11, will include the following paragraph:

"Under the protection granted by constitutional standards, higher-level organizations will have the right to express their opinions peacefully as to the economic and social policy of the Government."

Art. 4: In article 466, paragraph 4, the word "Ecuadoreans" is deleted.

In addition, a Government representative expressed his Government's regret at the observations regarding the lack of conformity of its national legislation to the provisions of Convention No. 98. He stated that he would take all steps to achieve the required harmonization. Over the past two years Ecuador had been through particularly difficult political circumstances, having removed a constitutional President of the Republic, established an interim Government which, 18 months later, yielded power to the present President of the Republic, who although legally and democratically elected by the people in May 1998, only took up his post last August. At the end of 1997, a constituent National Assembly had been established in Ecuador, charged by the people to draft a new Constitution. The Assembly, after six months' deliberation, set out a new Constitution, which entered into force on the day of accession of the new Government, that is, only on 10 August 1998. Among its basic standards, the Constitution included the following: it set forth the protection that the State owes the worker, its attachment to social law and the intangibility of workers' rights. The speaker referred to the text of article 35, paragraphs 6 and 7, on the right to organize, reproduced in the written information communicated by the Government, and stressed that the right to freedom of association was an inalienable principle which could not be violated and which the State must defend and promote. Further, paragraph 12 of article 35 of the Constitution expressly guaranteed the right to collective bargaining. Consequently, any legal agreement thus established could not be unilaterally modified or altered in any way. Article 163 was of special importance, since by virtue of this article the standards set forth in international treaties and Conventions, when promulgated, would become an integral part of the national legislation and would take precedence over lower-ranking laws and other standards. Thus, under the terms of the Constitution, international Conventions, and in this specific case of the ILO, would be automatically incorporated into Ecuadorean legislation and would be accorded a special importance, taking precedence over such laws and standards as might be in opposition to them.

However, it goes without saying that the drafting of a new Constitution involves alterations in national standards, and as such represents a major legal undertaking, so as to bring secondary legislation into line with the text of the new Constitution as well as several texts which had already been elaborated, with the cooperation of the ILO through a technical assistance mission in 1997, agreement of the texts with the new Constitution should be attained, with no concurrent diminution in their value and applicability. Finally, he stressed the value of the constitutional standards and their guaranteed application, by stating that whoever claimed his rights as a worker, as guaranteed under article 163 cited above, and had been infringed could submit an appeal in two ways: either in the form of a habeas corpus procedure, before a judge of the first instance, or directly to the Constitutional Tribunal, court of the highest independent jurisdiction.

In conclusion, he reiterated his regret that, for reasons already expressed centering around the political and legal instability through which his country had been passing until only a few months previously, and the recent entry into force of a new Constitution, that it was not possible on this occasion to report any definite results regarding the observations made on Ecuador's application of the Convention. In this connection, an information campaign launched this year with the aid of the ILO Regional Office (Lima) would raise awareness of legal and judicial functions and increase the scope of the country's commitment to ILO Conventions, thereby ensuring their application by the legal administrators; the campaign would also encourage members of National Congress to establish joint action with the Government and most importantly, with employers' and workers' organizations. This should yield definite progress in a very short time, with the drafting of legal standards in harmony with the Conventions and the constitutional standards. Thus worker and employer groups would join with the Government, with a view to stimulating legal action in all necessary fields. The speaker closed, thanking the ILO for the great help it had already given to Ecuador, and expressed his hope that his country could continue to count on the Office's aid.

The Worker members recalled that for several years previously the Committee had examined this case concerning the application by Ecuador of several Conventions, including the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The current situation in Ecuador as regards trade unions has been examined since 1987 and in 1988 and 1989 the case of Ecuador was even mentioned in a special paragraph. Specific observations had been formulated by the Committee of Experts in 1990, 1991, 1992, 1994, 1996 and 1998 as regards the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Several technical assistance missions had been carried out in Ecuador by the ILO with a view to ensuring that the appropriate measures be taken. The Worker members had nonetheless had to conclude that these actions had had no effect on the content of the responses by the Government; it continued to assert that it was examining the problem and that it would soon enact new legislation. The progress that occasionally had been noted had been too slight to be credible.

The Worker members noted that the Government made reference to the new Constitution both in its written and oral submissions. This Constitution provided expressly that freedom of association be implemented by legislation. The relevant legislation had, however, not yet been amended although the Minister of Labour had announced future amendments. Furthermore, the Government had only made reference to certain selected parts of the Constitution. Other provisions of the Constitution, such as the imposition of a trade union monopoly within state institutions, did not, however, conform to international standards. The Government did in fact limit itself to citing selected provisions and principles of the Constitution, but did not make reference to any other concrete measures that would have been taken in response to the main substantive issues and the frequent discrepancies noted by the Committee of Experts. The Government had even succeeded in surprising the Committee of Experts last year by wholly ignoring the results obtained during the technical assistance mission.

According to information from Worker members, the Government had decided in April 1999 to replace the SENDA (the National Secretariat of Administrative Development) by another system -- the National Council for Wages in the Public Service. This Council was composed of three members -- the Ministers of Finance and of Labour, and a worker member. The Council took its decisions by majority and had been given wide competence. It had total control over collective bargaining and fixed maximum wage levels. It could also forego the application of a collective agreement. The Committee of Experts noted in its report again this year that no measures had yet been taken to amend article 3(g) of the Civil Service and Administrative Careers Act to allow members of the public service or other public institutions or private institutions with social or public function to exercise the rights provided for in the Convention. The Committee of Experts regretted that the report of the Government made no reference to the questions raised regarding protection against acts of discrimination against trade unionists in employment or to the provisions in the Labour Code regulating the submission of draft collective agreements. Finally, the Committee of Experts had felt compelled to recall to the Government that, as regards teachers, it was requested to take measures to amend its legislation so that teachers could exercise the right to collective bargaining at all levels. In its examination of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee of Experts "while taking note of the goodwill expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention". Furthermore, the Committee had noted that certain new provisions of the 1998 Constitution gave rise to, or could give rise to, problems with respect to the application of the Convention.

The Worker members emphasized that they agreed that the Committee of Experts should make reference to the good intentions expressed by the Government. However, although the Government had good intentions, they might prove wholly insufficient. It was becoming increasingly difficult to accept recurrent declarations of good intentions reiterated year after year, in particular as the ILO had spared no efforts to provide technical assistance to the Government. The Worker members declared last year that "technical assistance and direct contacts missions of the ILO were not intended to serve as means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions". The Worker members therefore had demanded that specific conclusions should be formulated. They had requested that the Committee re-examine the case again this year and they had also requested that this demand be contained in the conclusions by the Committee. The authorities should cease to interfere with collective bargaining and should bring their legislation into conformity with the provisions of the Convention both in the private and public sectors taking into account all the observations made for more than ten years by the Committee of Experts. The Government should provide a detailed report of measures taken in time for an analysis by the Committee of Experts. Finally, should no progress be noted in the course of the next year, the Worker members would propose another set of conclusions in the Committee's report.

The Employer members noted that last year this Committee had examined the case of Ecuador with regard to its application of Convention No. 87. Although the case before this Committee was not on the same subject-matter as that case, the problems which had occurred with respect to the implementation of Conventions Nos. 87 and 98 were similar. They noted that following a technical assistance mission in 1997, two Bills had been drafted for the purpose of repealing, inter alia, section 1 of Decree No. 2260 which imposed the requirement that the National Secretariat of Administrative Development (SENDA) provide advice on draft collective agreements in the public sector. In this respect, they agreed with the findings of the Committee of Experts in its observation that this provision itself was not contrary to the provisions of the Convention, and pointed out that the ILO had no right to interfere with national matters in this respect. Moreover, they noted the information communicated by the Government in its report to the Committee of Experts to the effect that SENDA no longer existed.

With reference to collective bargaining in the public sector, they said that legal action should be taken in order to enable workers in official departments or other public sector institutions, as well as private sector institutions within the social or public sphere, to enjoy the rights enshrined in the Convention. In addition, it was necessary that provisions be modified so that the establishment of works committees was not dependent on the requirement that they be established by more than 50 per cent of the workers in question. With regard to the education sector, they recalled that although teaching staff did enjoy the right to organize and to bargain collectively at the national level, it should be for the trade union to decide at which level -- national, regional, provincial or branch -- it wished to carry out collective bargaining. However, they appreciated the attitude of the Government with respect to the need to take appropriate action. In conclusion, they stated that the preparation and adoption of the new Constitution referred to by the Government representative was not sufficient. A constitution provided a framework which needed to be implemented by law. Therefore, the Government should be requested in the conclusions of this Committee to continue at a rapid pace the legislative process that had already begun in order to bring its national legislation into conformity with the provisions of the Convention.

The Worker member of the United States indicated that the Committee in its consideration of this case seemed to be constantly searching for the truly honest government, since the same basic issues concerning the country's non-compliance with the Conventions on freedom of association, the right to organize and to bargain collectively had come before this Committee a number of times. He noted that during the course of an ILO technical assistance mission, the Government had stated that it was taking all the necessary measures to remedy several areas of non-compliance with the Convention. The Government had pointed in particular to two bills drafted in 1997; however, these bills had still not been enacted into law. While recognizing that this Committee had chosen to discuss the observation of the Committee of Experts concerning Convention No. 98 rather than Convention No. 87, he stressed that the rights set out in these two Conventions are closely intertwined, and the issues related thereto are often difficult, if not impossible, to separate.

The Worker member stated that, despite the Government's assertions, a large portion of public sector workers classified as civil servants and administrative career personnel, including public school teachers, did not have the right to bargain collectively or to strike. He noted that while the National Union of Educational Personnel may be allowed to take part in a sort of collective forum, this could not be equated with the right to bargain collectively concerning wages, hours and terms and conditions of employment, nor was it an acceptable substitute for the right to strike. He also pointed to the fact that although SENDA no longer existed according to the Government, due to a law enacted in April 1999, this body had been replaced by the National Public Sector Remuneration Council, which could not be considered to be truly tripartite since the Government representatives sitting on the Council could outvote the social partners. He emphasized that this Council had total authority to determine wages, hours and terms and conditions in the public sector, and that collective agreements with public sector workers could not include indexed wages. In addition, public sector employers illustrating economic difficulties were entitled to suspend their obligations under collective agreements.

Like the Committee of Experts, he expressed regret that there had been no response from the Government concerning the lack of legislative protection against anti-union discrimination at the time of recruitment in both the public and private sectors. He asserted that without such provisions, one could not reasonably find that there had been effective compliance with either Convention No. 87 or 98. With respect to workers in the public sector who are denied the right to bargain collectively, as well as those private sector workers classified as being employed in a social or a public sphere, who may only exercise that right if they succeed in establishing Committees authorized by more than 50 per cent of the entire workforce, he emphasized that this continuing legal obstacle effectively denied collective bargaining rights to a large segment of the workforce.

Although it had not been raised by the Committee of Experts, he drew the Committee's attention to the 1990 Export Processing Zone Law. In his view, this Law gave rise to significant problems with respect to the country's obligations under the Convention, since it allowed any enterprise to obtain EPZ status regardless of where it was located in the country, thus enabling temporary workers to be hired outside the scope of the guarantees provided in the Labour Code, particularly with respect to the right to organize and to bargain collectively. Furthermore, he asserted that there could be no effective or substantial compliance with either Convention No. 87 or 98 where the Government and the legal system could not protect the physical integrity and the freedom of expression of workers and their representatives. In this context he indicated that on 30 September 1998, a government official had publicly threatened to prosecute the President of the Confederation of Ecuadorean Free Trade Unions on the basis of "disparaging remarks about the country and for threatening national security". He asserted that this illustrated that trade unionists exercising freedom of expression in the country suffered threats of reprisals. In addition, on 5 September 1998 the tortured corpse of an executive officer of the Ecuadorean Trade Union Central was found.

The Worker member of the United States then concluded by expressing his full agreement with the recommendations of the Committee of Experts, and he hoped that the Government would be able to demonstrate real progress with regard to compliance with the Convention.

The Worker member of Guatemala welcomed the explanations given by the Minister of Labour of Ecuador and confirmed that Ecuador's new Constitution did indeed contain social and labour rights that guaranteed collective bargaining and gave priority to international standards over national standards. Problems arose, however, in their practical application. Constitutions were not regulations and only contained principles that then had to be given effect by ordinary domestic legislation. He stated that taking into account the background, the Committee should reach the conclusion that the problems relating to the application of Convention No. 98 persisted and needed to be resolved, thus the conclusions of the Committee of Experts should be supported. As the Minister of Labour had indicated, an appeal could be lodged and there were other ways of contesting constitutionality, but the procedures were lengthy and did not prevent damage being caused. Ecuador should not only bring its legislation into line with ILO standards, but also with the principles set out in its new Constitution. He underlined the benefits of negotiation for resolving social problems. Lastly, he indicated that in Ecuador there were limitations on the right of association and collective bargaining in the teaching sector.

The Worker member of Ecuador commended the Committee of Experts on its report, particularly in relation to the application by Ecuador of Conventions Nos. 87 and 98. He stated that one of the draft laws prepared by a technical assistance mission in 1997 had envisaged the abolition of the National Secretariat of Administrative Development (SENDA), after consensus had been reached between the Government, workers and employers, in view of the fact that SENDA could unilaterally, under the terms of Decree No. 2260, modify agreements which had been freely concluded by the parties through a collective agreement. In its report, the Government had stated that SENDA no longer existed and that it was about to take measures to abolish its functions. In practice, these functions had been assigned to a body called the National Public Sector Remuneration Council, with the aggravating factor that it had been given unlimited powers to establish maximum levels of wage increases, social benefits and conditions covered by collective agreements, thereby eliminating the freedom to negotiate. Although this body included a workers' representative (the other two were from the Ministry of Labour and the Ministry of Finance), it was clear that its decision would be taken in the exclusive interests of the Government, which had, therefore, become both judge and jury.

With regard to the request made by the Committee of Experts that section 3(g) of the Civil Service and Administrative Careers Act be amended, it was essential to take into account the provisions of section 253 of the Labour Code, which protected the right of all workers in social and public bodies to collective bargaining, and only excluded managerial and administrative level officials. Similar protection was set out in article 35 of the Political Constitution of the State.

He recalled that the Government had not taken any measures to overcome the incompatibility between national law and practice and the Convention. Anti-union discrimination had worsened, as evidenced through various practices and laws. Dating from the reform of the Labour Code in 1991, employers were recruiting workers through intermediaries and contractors, although they always avoided taking on more than 29 workers, so that the workers were not able to establish a trade union or engage in collective bargaining. In Ecuador, the minimum number of workers required to be able to exercise this right was 30. Moreover, there was no legal right to conclude sectoral-level collective agreements. These could only be concluded at the enterprise level. Many employers required workers to join associations which were controlled by the enterprise. When workers decided to organize for the first time and proposed a collective agreement, they were dismissed and had to initiate legal action to obtain compensation. This situation had given rise to great fear among workers who were trying to organize and propose collective bargaining that they ran the risk of losing their job in a country in which, of the economically active population of 4.2 million persons, around 3 million were unemployed or underemployed.

With regard to the freedom of association and right to collective bargaining of teaching personnel, there had been no progress. Teachers were obliged to call at least one lengthy strike each year to obtain wage increases.

He stated that the Government's report encouraged the hope that progress could be made in law and practice for the application of the Convention. However, in practice, exactly the contrary was occurring, as illustrated by an examination of the content of sections 51 to 57 of the Act to reform public finances of 30 April 1999. This Act was in contradiction with Conventions Nos. 87 and 98.

Nevertheless, despite the above, there was a readiness on the part of the Government to undertake legislative reforms for which, as it had stated in its report, it would call upon the technical assistance of the ILO. Based on this statement, and in view of the fact that technical assistance missions had been undertaken on various occasions, it might be necessary to send a direct contacts mission to achieve once and for all the harmonization of national law and practice with the Convention.

The Government representative stated that the National Secretariat of Administrative Development (SENDA) no longer existed; therefore, its authority unilaterally to amend agreements reached freely by parties to a collective agreement had been abolished. As far as the situation in Ecuador was concerned, he explained that the Constitution itself could not give effect to the provisions of the Convention, which required the enactment of hundreds of laws that would be adopted over the next four years. He highlighted the work carried out by the ILO Office in Lima, which supported the Government's efforts to promote ILO standards. Lastly, he reaffirmed the Government's intention to bring its legislation into conformity with the provisions of the Convention.

The Committee noted the statement made by the Minister of Labour and the written information supplied by the Government as well as the discussion which took place thereafter. It noted the constitutional developments which had taken place recently, but expressed serious concern that there had been very little progress in the situation of compliance in law and practice with the Convention. It urged the Government to take the necessary measures without delay to bring its legislation into full conformity with this fundamental Convention ratified 40 years ago. In particular, it stressed the need to reinforce the protection of workers against acts of anti-union discrimination at the time of recruitment and to remove the administrative obstacles to free collective bargaining in the private sector. The Committee also strongly urged the Government to take the necessary steps to ensure that workers in official departments or other public or semi-public sector institutions, as well as teachers at all levels, enjoy fully the right to organize for the protection of their occupational interests and the right to bargain collectively their employment terms and conditions. It recalled that the International Labour Office was at the Government's disposal to provide technical assistance which might be necessary in this regard. The Committee expressed the firm hope that the Government would supply detailed information to the Committee of Experts in its next report on the measures effectively taken to ensure in the very near future full compliance with the Convention in law and in practice.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

See under Convention No. 87, as follows:

The Government has communicated the following information:

A new Minister has been in charge of the country's labour policy since 12 May 1987. He will try, when the opportunity presents itself, to push for the legal amendments which have been proposed. For this reason, he requests a judicious measure of patience.

The Government reports that the Court of Constitutional Guarantees, on the occasion of a proceeding brought by workers' representatives challenging the continuing validity of Legislative Decree No. 105 of 7 June 1967, confirmed that it was still in effect, since it did not violate any constitutional principles. When the Court's decision was presented to the Plenary of the Permanent Legislative Committees of the National Congress, the Parliament confirmed the judgment.

This situation reaffirms and confirms the position which the Government has been maintaining with regard to the above mentioned Legislative Decree, to the effect that it in no way infriges upon the right to organise, or freedom of association, or the spirit or the letter of Convention No. 87.

Primacy of the Constitution over other laws. This concept, embodying the legal hierarchy, is set forth in the Constitution. The guiding principles for labour rights are incorporated in this Constitution. The right to organise trade unions is guaranteed by the Constitution; it is a constitutional precept. Workers' right to strike and employers' right to lock out are guaranteed by the Constitution: they are constitutional precepts.

The right to strike, guaranteed. by the Constitution and effectively protected by the laws, constitutes the suspension of work, called by workers under certain circumstances specifically set forth in positive norms, within the framework of a collective dispute between the employer and his or her workers, as made known to the competent authorities on the subject. This enables the strikers to remain at the workplace and to be watched over by the police, who guarantee order and protect the strikers from the involvement of agitators or strikebreakers. The penalty for leaders of a strike which has been declared illegal is none other than the loss of their stability of employment. The "lock-out" or "work stoppage" (paro) is, in the labour field, the suspension of work provided by the employer, under certain precise circumstances and also within the framework of a process subject to the jurisdiction of the labour authorities. The "stoppage" (paro) referred to in Legislative Decree No. 105 of the National Assembly is something else, since this Legislative Decree is not labour-related in nature.

Legislative Decree No. 105 refers to activities which criminally paralyse the entire nation or locality for disruptive purposes. It refers to misdeeds which fall within the scope of crimes against the internal security of the State or public safety. It is related to the chapters of the Penal Code which are pertinent for the characterisation of such infractions and in particular sections 129, 130, 135, 136, 153, 155, 158, 159, 218 and 221 of that Code.

The Government requests that it be acknowledged in respect to the continuing allegations made concerning Legislative Decree N o. 105, approved by the National Constituent Assembly, that the Legislative Decree in no way runs counter to legal strikes. which are broadly protected by the Constitution and the laws, and that it does not in any way diminish the application of the Convention.

The legal value protected by Legislative Decree No. 105 is public order and the internal security of the State. The direct victim of the crimes could be any inhabitant of the Republic, whether a national or a foreigner; the indirect victim is civil society in general and could even be the State itself in terms of its political organisation.

When the Legislative Decree uses the word "stoppage" (paro), it does not use it in the same sense as the Labour Code: it does not deal with" a suspension of work ordered by an employer or combination of employers".

In this case the word "stoppage" ("paro") is used to mean "paralisation", arbitrarily imposed, by means of a rebellious attitude toward the legitimate authorities, in which daily life in an area is completely suspended in a region or in the nation as a whole, taking advantage of a situation of total or partial anarchy in the community affected and disturbing the peace of the inhabitants.

The penalties provided for in our Penal Code, in order to protect the internal security of the State and public order, are not unknown in the legislation of other countries. All civilised nations on the globe in one way or another envisage measures designed to defend the survival of the state entity and to protect society from anarchy. As Beccaria said, "The primal and the ultimate crimes, since they are the most dangerous, are those termed lèse majesté...; any crime, even a private crime, is an offence to society, but not every crime aims at its immediate destruction."

In addition, a representative of the Government of Ecuador cited in full the comments of the Committee of Experts in its 1987 report with regard to the Convention. Subsequently, he referred to the information provided by his Government in writing and also read out certain provisions of the Constitution and the Labour Code relating to the right to organise and the right to strike.

The Workers' members insisted upon the fact that national legislation was not in conformity with Conventions Nos. 87 and 98. Two direct contacts missions had taken place in 1980 and 1985. Amendments to the legislation were prepared at the time of the direct contacts mission in 1985. They stated that it was essential to adopt these amendments. They did not think that a new mission of direct contacts was necessary since this would only delay matters. They requested the Government representative to furnish information on the implementation of the legislative reforms which were envisaged.

The Employers' member reminded the Committee that the report of the Committee of Experts had clearly drawn attention to a number of violations, which varied in their importance, with respect to Conventions Nos. 87 and 98. At the time of the direct contacts mission in 1985, draft proposals had been worked out so as to ensure the conformity of national legislation with the Conventions. They thought it would be helpful if the Government representative could indicate whether the legislative reforms which had been envisaged had been adopted and, if not, to indicate whether they would be adopted in the near future. They were not convinced that a new direct contacts mission, as requested by the Government, would serve a useful purpose since the amendments necessary to ensure the compliance of national legislation with the Conventions had already been developed at the time of the 1985 direct contacts mission.

The Worker member of Ecuador expressed his complete disagreement with the information communicated in writing by the Government, as well as with the statement made by the Government representative. He stated that government policy with regard to labour matters rested with the President of the Republic through the labour co-ordination office, and not with the Minister of Labour. The nomination of a new minister would not therefore have an important impact on the situation and would not lead to the adoption of legislation giving effect to Conventions Nos. 87 and 98, whose provisions were not respected. He added that, certainly, the Constitution and the Labour Code honoured the basic principles of labour law. In practice, however, these principles were not respected. This meant that public employees did not have the right to form trade unions, although the Constitution guaranteed the right. Nor did they enjoy the right to strike, although this was permitted under the Constitution. The Act concerning the civil service and carreers in the administration was contrary to the Constitution. It was essential for the Government to take the necessary measures to reform this Act, since it was the basis of the problem. Furthermore, in practice, when workers presented their demands or gave notice of a strike, employers responded by dismissing workers, often en masse. In other cases, they dismissed trade union leaders. Although arbitration and conciliation tribunals had the right to insist on the reinstatement of workers who had been dismissed for having gone on strike, no one had been reinstated. The prohibition imposed on trade unions to participate in the activities of political or religious parties was also a violation of Conventions Nos. 87 and 98. The granting of exclusive rights to bargain collectively to "work councils" was another violation of these Conventions. What was even more serious was the classification of public servants into two categories, those who were covered by the Labour Code and those who were covered by the Act concerning careers in the administration.

As far as Legislative Decree No. 105 of 7 June 1967 was concerned, the Government had declared that its objective was to penalise criminal acts aimed at paralysing the activities of national or local communities. He stated that this was false; work stoppages punished by Legislative Decree Nos. 105 were specifically industrial strikes since these were organised and carried out by the four central trade union organisations. It was not, therefore, a question of crimes against the internal security of the State. Nevertheless, Legislative Decree No. 105 had to considered as abolished by the 1979 Constitution and should not, therefore, be applied.

Another Government representative, the Deputy Minister of Labour of Ecuador, indicated that the labour co-ordination office under the responsibility of the President of the Republic was not in charge of the country's labour policy, but was responsible for co-ordinating everything that related to collective bargaining in the public sector. The Constitution guaranteed the right to organise. Civil servants had enjoyed the right to strike since 1979 following the adoption of amendments to the Labour Code, as the last direct contacts mission had been able to observe. As far as the legal provisions on the prerequisites for workers in the public sector to organise were concerned, the Court of Constitutional Guarantees had suspended them for some time. With regard to Legislative Decree No. 105 of 1967, he stated that it was still in effect and its validity had been confirmed in January 1987 by this Court. He said that the Government of Ecuador had noted with interest the comments of the Committee of Experts. This was why the Government was interested in a new direct contact mission to visit the country so that it could familarise itself with the situation. It would be able to see the existence of trade unions and get in touch with the members of the Court of Constitutional Guarantees as well as with the representatives of Parliament. For this reason, he thought that it was not the time to adopt conclusions critical of Ecuador. He added that there was at the moment an ILO official in Ecuador studying the difficulties with respect to applying vari- ous standards concerning civil servants, which proved the Government's willingness to guarantee the full exercise of rights, not only for workers in the public sector but for all workers. Legislative Decree No. 105 of 1967 did not penalise either the workers or their leaders since in Ecuador the right to strike was guaranteed, but rather the Decree was intended to punish criminal acts, no matter who was responsible for them, which were meant to endanger the internal peace and security of the State.

The Worker member from the United Kingdom recalled that the Committee of Experts had expressed its regrets that the Government had not furnished information on the measures which it intended to undertake so as to give follow-up to the direct contacts missions. The information provided by the Government in writing did not provide any new information on this point. With regard to the Government's request for a new direct contacts mission, he could not see the value of this, since the Committee of Experts had already established the fact that the legislation must be amended. He added that the Government representative of Ecuador should be requested to state specifically if the legislation was going to be amended in such a way as to ensure the application of the relevant Conventions.

The Deputy Minister of Labour declared that it was because his Government considered that certain points had not been settled during the last direct contacts mission, despite the excellent work achieved in the course of this visit, that it had requested a new mission to come to Ecuador to complete the task which had already been undertaken. Furthermore, following the last visit, certain decisions had been taken by certain bodies independent of the executive branch of government, such as for instance the above-mentioned decision taken by the Court of Constitutional Guarantees.

The Workers' members emphasised the fact that the 1985 direct contacts mission had worked out precisely the changes which needed to be made so as to bring national legislation into conformity with Conventions Nos. 87 and 98. A new mission would not contribute anything new, and would merely delay by one or two years the adoption of the reforms which were necessary. Under these conditions and given the fact that the problem was an old one which had been dealt with for some time, they proposed the adoption of a special paragraph to express the concerns of the Committee and to request the Government to give follow-up to the draft reform proposals prepared during the course of the last direct contacts mission and to adopt the legislation to the requirements of the Conventions.

The Employers' members recalled the fact that no new information had been provided concerning changes in the legislation within the context of the draft proposals prepared during the last direct contacts mission, and expressed the view that they did not find the request for a new direct contacts mission to be very convincing. Given the importance of the question which had been considered in the Committee for a number of years, they expressed their support for the proposal of the Workers' members to include a special paragraph in the report of the Committee concerning this problem in the hope that the Government would put into effect measures which had been proposed for a long time.

The Committee took note of the detailed discussions which had taken place on the application by Ecuador of Conventions Nos. 87 and 98, and in particular and especially the information furnished by the representatives of the Government. The Committee regretted that no measures had yet been taken to give effect to the Conventions with regard to several points raised by the Committee of Experts. The Conference Committee drew attention once more to the comments of the Committee Experts and to the detailed proposal which had been worked out during the direct contacts mission in December 1985. It requested the Government to consider taking the necessary measures to revise the legislation. The Committee hope that the Government would take action rapidly on the basis of the observations and proposals mentioned above and that it would be able to indicate next year that substantial progress had been achieved towards ensuring compliance of the legislation with the Conventions. Finally, the Committee decided to mention this case in a special paragraph.

The Deputy Minister of Labour said he reserved the right to express certain reservations once he had studied the text and the terms of the conclusions.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

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

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 24 August 2009 by the National Federation of Workers of the Enterprise “Petróleos del Ecuador” (FETRAPEC) alleging that some provisions of the new Constitution of Ecuador are inconsistent with the Convention. The Committee also notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to legislative issues raised by the Committee, and particularly certain provisions of the new Constitution of Ecuador and to the following matters: anti-union repression and intimidation of trade union officers and workers in a telecommunications enterprise; the dismissal of four trade union officers in the petroleum sector; lengthy proceedings; restriction of the subjects that may be negotiated collectively in cement enterprises and electricity and drinking water supply enterprises; interference by employers who encourage the establishment of “solidarista” organizations and acts of anti-union persecution against union officials in the judiciary which are being examined by the Committee on Freedom of Association. The Committee requests the Government to send its observations on these matters and on the ITUC’s comments of 28 August 2007 asserting that the law does not provide for sufficiently dissuasive penalties for breaches of labour and trade union law.

The Committee furthermore notes with regret that the Government has not sent its observations on the comments of 10 August 2006 by the ITUC concerning the lack of collective bargaining rights for subcontracted or outsourced workers, the use of “blacklists” in Los Ríos Province and anti-union dismissals. Observing that, according to the ITUC’s latest comments, subcontracting persists through so-called “complementary services”, the Committee reminds the Government that the right to negotiate working conditions freely with employers is an essential component of freedom of association and that all workers, with the possible exception of the armed forces, the police and persons engaged in the administration of the State, are covered by the Convention and particularly Article 4. In these circumstances, the Committee requests the Government to ensure that workers performing “complementary services” are able fully to exercise trade union rights and, in particular, bargain collectively.

Furthermore, with regard to the alleged use of “blacklists” in one province, the Committee points out that the practice of placing trade union officials or members on “blacklists” is a serious threat to the free exercise of trade union rights, and requests the Government to hold an inquiry and, if the allegation of blacklisting is confirmed, to take the necessary steps to ensure that this practice is sanctioned by sufficiently dissuasive penalties.

New Constitution of Ecuador

The Committee notes that on 28 September 2008 a new Constitution was adopted and that it entered into force on 20 October 2008.

The Committee notes that, in the context of the Constitution’s adoption, the Constituent Assembly passed a number of “Constituent Resolutions”, which are mandatory decisions of a “supraconstitutional” nature and are not subject to oversight or challenge by any other authority (including judicial review). The Committee notes that the Committee on Freedom of Association examined the conformity of these resolutions with the provisions of the Convention in the context of Case No. 2684. The Committee refers in particular to:

–           Constituent Resolutions Nos 002 and 004 which place a ceiling on public sector pay, compensation for unfair dismissal and other grounds of termination of the employment relationship, and ban supplementary private pension funds that involve input from state funds (Executive Decree No. 1406 provides that no state resources shall be contributed to supplementary funds). The Committee is of the view that these provisions, which apply even when public sector enterprises have sufficient income, impose permanent limitations on collective bargaining that are incompatible with the Convention. In these circumstances, the Committee requests the Government to take the necessary steps for the removal of these limitations and for the reinstatement of the right to collective bargaining on all subjects that affect the working and living conditions of workers.

–           Constituent Resolution No. 008 establishes the need to revise clauses in public sector contracts that contain abuses and undue privileges, and Ministerial Order No. 00080 and Order No. 00155A lay down administrative procedures for the automatic adjustment and revision of work contracts that include such clauses. The Committee points out in this connection that the checking of clauses in public sector agreements for possible abuses should be done not by the administrative authority – which in the public sector is both judge and party – but by the judicial authority, and only in extremely serious cases. The Committee is of the view that regulations that allow the administrative authority unilaterally to cancel or reduce the clauses of a collective agreement are contrary to the principle of free and voluntary bargaining. In these circumstances, the Committee requests the Government to take the necessary measures to repeal or amend Ministerial Order No. 00080 and Order No. 00155A and to indicate whether Constituent Resolution No. 008 is compatible with judicial review of certain clauses in public sector collective agreements that may contain abuses.

The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 2684 objecting to the unilateral review by the administrative authority of collective agreements it deemed abusive in the petroleum and health sectors. The Committee requests the Government to indicate whether the constituent resolutions abovementioned and the provisions adopted in its development are still in force or whether they have been modified or repealed by the new Constitution.

Pending legislative issues

The Committee again reminds the Government that for several years it has been commenting on the following matters:

–           The need to include in the legislation provisions that ensure protection against acts of anti-union discrimination at the time of recruitment. The Committee notes the Government’s statement in its report that the protection is ensured by virtue of section 44(f) of the Labour Code which provides that it is prohibited “to require a worker, by whatever means, to leave the association to which he belongs …”. The Committee points out that this protection covers anti-union discrimination: (1) at the time of recruitment; (2) in the course of employment; and (3) upon termination of the employment relationship, and includes all measures that are discriminatory in nature (whether dismissals, transfers, relegations in grade or any other measures adversely affecting the worker).

–           The need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations with a membership amounting to no more than 50 per cent of the workers subject to the Labour Code may, on their own or jointly (when there is no majority union representing all the workers), negotiate on behalf of their own members.

–           The need for teachers and heads of education establishments in the public sector and for staff performing technical and vocational duties in the education sector who are governed by the Higher Education Act (Act No. 2000-16) and the Act on Educational Careers and Posts in the Public Teaching Sector (Act No. 94 of 1990) to enjoy the right to collective bargaining. The Committee notes that in this connection that the Government refers to articles 96–99 of the new Constitution of Ecuador. The Committee also observes that Constituent Resolution No. 008 guarantees collective bargaining in public sector institutions. It requests the Government to indicate whether this guarantee extends to public sector teaching staff.

Noting the Government’s statement that the National Assembly is working on amendments to various laws including a proposal for a Labour Code Reform Act, a proposal for a Basic Public Service Act and a proposal for a Basic Act on Public Enterprises, the Committee expresses the hope that these will take full account of the provisions of the Convention recognizing the right to collective bargaining of public sector organizations and adequate protection against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions. It reminds the Government that it may seek technical assistance from the ILO in proceeding with the amendment of the Labour Code and the Public Service Act.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and observes that it does not contain specific information relating to the legislative issues that have been under examination. The Committee also notes the observations of the International Trade Union Confederation (ITUC) according to which the penalties established in law against violations of the labour legislation are not sufficiently dissuasive, which prevents workers from being able to exercise their trade union rights. The Committee requests the Government to provide its observations in this respect.

Pending matters. The Committee once again recalls that it has been making comments for several years on the following matters:

–           the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination in relation to recruitment;

–           the need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations including not more than 50 per cent of the workers subject to the Labour Code may negotiate, on their own or jointly, on behalf of their own members;

–           the need for public teaching staff and the heads of educational institutions, and for staff who perform technical and occupational duties in the education sector who are governed by the Higher Education Act (Act No. 2000-16) and the Act on educational careers and posts in the public teaching sector (Act No. 94 of 1990) to benefit from the right to organize and collective bargaining, not only at the national level, but also at the local and establishment levels. The Committee noted in its previous observation that, under the terms of section 5(d) of Act No. 94, teachers enjoy the right to freedom of association for the purposes of studying, participation in the planning and implementation of education policy and for the defence of their occupational interests. The Committee nevertheless notes that the legislation does not establish the right of teachers to collective bargaining. The Committee recalls that all personnel in the public administration who are not engaged in the administration of the State should enjoy the right to collective bargaining and, in this respect, considers that teachers are not engaged in functions related to the administration of the State and that they should therefore be able to engage in collective bargaining with a view to regulating their terms and conditions of employment through collective agreements;

–           the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in government departments and other public sector institutions and in private sector institutions that pursue social or public objectives enjoy the rights guaranteed in the Convention. The Committee notes with interest the deletion of this provision as a result of the recent adoption of the codified version of the Organic Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration.

Noting that it has been commenting on these provisions for many years, the Committee hopes that the Government will take the necessary measures in the near future to bring the legislation into full conformity with the Convention. The Committee requests the Government to keep it informed of any developments in this respect.

Furthermore, in its previous observation the Committee requested the Government to provide a copy of the Bill on the Organic Act respecting the civil service and administrative careers and the unification and standardization of public sector remuneration and the ruling by the Constitutional Court on its conformity with the Constitution. The Committee notes that the Government has provided a copy of both documents. The Committee notes that the above Organic Act was declared constitutional and that subsequently the codified version of the Organic Act respecting the civil service and administrative careers and the unification and standardization of public sector remuneration was approved supplementing and replacing the Bill, which was also declared constitutional. While noting that the above text repeals the prohibition on the establishment of trade unions, the Committee requests the Government to indicate whether, under the terms of the text, public servants and public sector workers in general may negotiate collective agreements and, if so, to explain the envisaged procedure for wage bargaining.

The Committee recalls that it noted previously that section 94 of Chapter XII of the Basic Act of 29 February 2000 on the economic transformation of Ecuador, which relates to amendments to the Labour Code, explicitly prohibits any revision or increase of the supplementing bonus or the compensation for cost-of-living increases, or the introduction of any other wage or remuneration supplement. The Committee also observed that section 95 of the same Act provides that the current amendments to the Labour Code are mandatory, unless there are provisions to the contrary in existing collective agreements or legally concluded contractual arrangements, for as long as they remain in force and unless otherwise agreed. In this respect, the Committee once again requests the Government to indicate in its next report whether, under sections 94 and 95 of the above Act, employers or their organizations and workers’ organizations continue to be subject to the limitations referred to above in freely concluding wage adjustment clauses through collective agreements.

Draft constitutional reform. The Committee notes the Government’s indication that the Minister of Labour and Employment announced that draft provisions would be submitted to the President for inclusion in the new Political Constitution of the Republic in the section on “Labour” for analysis and possible submission for consideration by the Constituent National Assembly. The Government is facilitating the examination of the draft text of this section, some of the provisions of which are not in full conformity with the Convention:

–           section 32(13) provides that employers with 15 or more workers who are members of a trade union organization shall be obliged to conclude a collective agreement when the organization so requests. In this respect, the Committee recalls that Article 4 of the Convention establishes the obligation to promote collective bargaining; and

–           section 32(14) provides that collective disputes shall be submitted to conciliation and arbitration tribunals, which shall be the only bodies competent for the classification, examination and resolution of claims. In this respect, the Committee recalls that, in general terms, recourse to compulsory arbitration when the parties have not reached an agreement through collective bargaining is only acceptable in the context of essential services in the strict sense of the term (that is, those the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in the case of public servants engaged in the administration of the State.

The Committee requests the Government to keep it informed of developments relating to the draft text of the new Political Constitution and hopes that the latter will be in full conformity with the provisions of the Convention.

Draft reform of the Labour Code. The Committee has been informed of the existence of a draft reform of the Labour Code, formulated with the assistance of the ILO. The Committee understands that its examination is suspended in view of the constitutional reform process. This being the case, the Committee requests the Government to keep it informed of developments relating to the examination of this legislative text.

Pending comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC). The Committee recalls that in its previous comments it requested the Government to send its observations concerning the comments made by the ICFTU concerning the lack of collective bargaining rights of subcontracted or outsourced workers, the use of “blacklists” in the province of Los Ríos and anti‑union dismissals.

The Committee notes that the Government provides a copy of the Act amending the Labour Code (Act respecting outsourcing and supplementary services) of 23 June 2006, regulating employment mediation services and the outsourcing of supplementary services, and setting out the obligations of new enterprises devoted to employment mediation and the users of such services. The Committee requests the Government to confirm that workers in enterprises engaged in employment mediation and the outsourcing of supplementary services enjoy the right to organize and collective bargaining. The Committee also requests the Government to reply to the ICFTU’s other comments.

Finally, the Committee reminds the Government that in the context of the current legislative and constitutional reforms it may benefit from the technical assistance of the ILO with a view to ensuring their conformity with the Convention.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which refer, in part, to outstanding legislative issues on the application of the Convention that are now being examined. Moreover, the ICFTU indicates the lack of collective bargaining rights of subcontracted or outsourced workers, the use of “blacklists” in the province of Los Ríos, and anti-union dismissals. In this regard, the Committee asks the Government to send its observations concerning the ICFTU’s comments.

Moreover, the Committee requests the Government to communicate, in accordance with the regular reporting cycle and in time for the Committee’s next session in November-December 2007, its observations on all the legislative issues, and the  issues relating to the application of the Convention in practice mentioned in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report. It also notes the comments made by the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention, which principally refer to matters already raised by the Committee. The Committee requests the Government to provide its observations in this respect, and particularly on the comments relating to the dismissal of unionized workers following the presentation of a draft collective agreement in a banana plantation.

The Committee notes once again that it has been making comments for several years on the following matters:

–      the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination in relation to recruitment;

–      the need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations, which include not more than 50 per cent of workers subject to the Labour Code, may negotiate, on their own or jointly, on behalf of their own members;

–      the need for public teaching staff and the heads of educational institutions, and for staff who perform technical and occupational duties in the education sector (who are subject to the basic laws on education and the salary scales of teachers), referred to in section 3(h) of the Civil Service and Administrative Careers Act, to benefit from the right to organize and bargain collectively, not only at the national level, but also at the local and establishment levels (the Committee requested the Government to provide in its next report the legislative provisions governing the labour relations of these workers, with an indication of whether they are covered by the guarantees set forth in the Convention); and

–      the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in government departments or other public sector institutions and in private sector institutions that pursue social or public purposes enjoy the rights guaranteed in the Convention.

In this respect, the Committee notes that the Government indicates that a project of amendment of the Civil Service and Administrative Careers Act has been elaborated and that technical assistance has been requested from the subregional office so as to carry out an in-depth study on the necessary reforms before forwarding them to the legislature. Moreover, the Committee takes note of the Act on Teachers’ Career and Posts in the Public Teaching Sector of 1990 which provides that teachers have the right to freedom of association for the study, participation in the planning and execution of educational policy as well as the defence of their professional interests.

In these conditions, the Committee expresses the hope that the necessary modifications will be made in the framework of the envisaged legislative reform so that public teaching staff and the heads of educational institutions, as well as staff who perform technical and occupational duties in the education sector, enjoy the right to organize and collective bargaining. The Committee requests the Government to provide information in its next report on all developments relative to the amendment of the legislation.

Finally, the Committee recalls that in its previous observation it noted that the Confederation of Workers of Ecuador (CTE) and the World Federation of Trade Unions (WFTU) had sent comments on the application of the Convention objecting to section 8 of Executive Decree No. 44 of 30 January 2003, prohibiting any increase in wages and remuneration in the budgets of public sector entities for the financial year 2003, and the decision of the National Remuneration Council (No. 197) prohibiting wage increases in 2004 and 2005 and that it requested the Government to provide its observations on these matters. The Committee notes the Government’s indication in its report that: (1) the formulation and implementation of the fiscal policy in the country is the responsibility of the executive authorities, and is discharged by the Ministry of Economy and Finance; (2) to guarantee a disciplined fiscal policy through which public expenditure is compatible with the real financing capacity, the Organic Act on fiscal responsibility, stability and transparency was adopted, section 3 of which establishes macrofiscal rules to limit the real growth of primary expenditure; (3) the responsibilities of the Ministry of Economy and Finance include ensuring that such macrofiscal rules are strictly complied with in all state activities, and one of these rules relates to the management of remuneration in the public sector and its corresponding financing; (4) the National Remuneration Council (CONAREM) was competent (according to the Government, this body is no longer legally in existence) to establish economic ceilings with which labour agreements between workers and their employers had to comply; and (5) both the Ministry of Economy and Finance and CONAREM have discharged their statutory duties within the context of a disciplined fiscal policy and austerity in public expenditure. The Committee recalls in this respect that all workers in the public administration who are not engaged in the administration of the State should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their terms and conditions of employment, including wage conditions, and that if, under an economic stabilization or structural adjustment policy, that is for imperative reasons of national economic interest, a government provides that wage rates cannot be fixed freely by means of collective bargaining, this restriction should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to protect effectively the standard of living of the workers concerned, in particular those who are likely to be the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 260). It is the Committee’s understanding that the provisions of Executive Decree No. 44 of 30 January 2003 and the decision of the National Remuneration Council (No. 197), to which objections were raised, are no longer in force and it requests the Government to ensure that any future restriction on wage negotiations takes into account the principle set out above.

The Committee also noted in its previous observation that the CTE objected to the Civil Service and Administrative Careers and Unification and Standardization of Public Sector Remuneration Act of 6 October 2003 which, in its opinion, infringes Conventions Nos. 87 and 98 (the CTE indicated that it had requested the Constitutional Court to declare certain sections of the Act unconstitutional), as well as to a draft amendment to the above Act submitted to the National Congress on 16 December 2003. The Committee requested the Government to provide the ruling issued by the Constitutional Court and a copy of the Bill referred to above. The Committee regrets to note that the Government has not provided the requested documentation and asks it to provide it in its next report.

Finally, the Committee recalls that it noted previously that section 94 of Chapter XII of the Basic Act of 29 February 2000 on the economic transformation of Ecuador, which relates to amendments to the Labour Code, explicitly prohibits any revision or increase of the supplementing bonus or the compensation for cost-of-living increases, or the introduction of any other wage or remuneration supplement. The Committee also observed that section 95 of the same Act provides that the current amendments to the Labour Code are mandatory, unless there are provisions to the contrary in existing collective agreements or legally concluded contractual arrangements, for as long as they remain in force and unless otherwise agreed. In this respect, the Committee once again requests the Government to indicate in its next report whether, under section 95 of the above Act, employers and their organizations and workers’ organizations are free to include in collective agreements wage adjustment clauses that take into account cost-of-living increases.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Confederation of Workers of Ecuador (CTE) and the World Federation of Trade Unions (WFTU) sent comments on the application of the Convention by letters of 17 December 2003 and 14 January 2004, objecting to section 8 of Executive Decree No. 44 of 30 January 2003 prohibiting an increase in wages and remuneration in the budgets of public sector entities for the financial year 2003. They also refer to a decision of the National Remuneration Council (No. 197) prohibiting wage increases in 2004 and 2005. The Committee notes with regret that the Government’s communication dated 17 August 2004 does not provide a reply to the Committee’s comments. The Committee requests the Government to provide its observations in its next report. In any case, the Committee recalls that in its previous observation it referred to the Decree in question and reiterates what it said on that occasion, namely that:

… all workers in the public administration who are not engaged in the administration of the State must be able to enjoy the guarantees laid down in the Convention and, consequently, negotiate collectively their conditions of employment, including wages, and that if, under an economic stabilization or structural adjustment policy, i.e. for imperative reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, these restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to effectively protect the standard of living of the workers concerned, in particular those who are likely to be the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 260).

The Committee also notes that the CTE objects to the Civil Service and Administrative Careers and Unification and Standardization of Public Sector Remuneration Act of 6 October 2003, which, in its opinion, infringes Conventions Nos. 87 and 98 (the CTE states that it requested the Constitutional Court to declare certain sections of the Act unconstitutional), as well as to a draft amendment to the abovementioned Act presented to the National Congress on 16 December 2003. The Committee requests the Government to send the ruling handed down by the Constitutional Court. The Committee also hopes that the draft in question will be in conformity with the Conventions on freedom of association and collective bargaining. The Committee requests the Government to send it a copy of the draft and reminds it that it may avail itself of the technical assistance of the Office if it so wishes.

The Committee intends to examine the remaining issues concerning the application of the Convention in the context of its regular reporting cycle (see 2003 observation and direct request, 74th Session).

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

The Committee notes the Government’s report.

The Committee notes that section 94 of Chapter XII of the Basic Act of 29 February 2000 on the economic transformation of Ecuador which concerns the Labour Code reform, explicitly prohibits any revision or increase of the supplementing bonus or the compensation for the cost-of-living increase, or the introduction of any other wage or remuneration supplement. The Committee observes that section 95 of the same Act provides that the current amendments of the Labour Code are mandatory, unless there is some provision to the contrary in existing collective agreements or legally concluded contractual arrangements, for as long as they remain in force and unless agreed otherwise. The Committee requests the Government to state in its next report whether, under section 95, employers and their organizations and workers’ organizations are free to include in collective agreements wage adjustment clauses that take account of cost-of-living increases.

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

The Committee notes the Government’s report. It notes with regret that the Government has sent no information in response to most of the comments that the Committee has been making for several years on the following matters.

Article 1 of the Convention. With regard to the need to include in the legislation provisions that guarantee protection against anti-union discrimination at the time of recruitment the Government states that no legislative initiative has been introduced in this respect. The Committee emphasizes the need for such provisions to be included and requests the Government to provide information in its next report on any measures taken to that end.

Article 4. The Committee notes that the Government indicates that there has not been any development with regard to the comments relative to the need to amend the second paragraph of section 229 of the Labour Code, regarding the submission of the draft collective agreement, so that minority trade union organizations which include not more than 50 per cent of workers subject to the Labour Code may negotiate, on their own or jointly, on behalf of their own members. The Committee requests the Government to take steps for the necessary amendments to be made as soon as possible.

The Committee had also referred to the need for the public teaching staff and heads of educational institutions, and for staff who perform technical and occupational duties in the education sector (who are subject to the basic laws on education and the salary scales of teachers) referred to in section 3(h) of the Civil Service and Administrative Careers Act, to benefit from the right to organize and bargain collectively, not only at the national level but also at the local and establishment levels. The Committee observes that the Government mentions the Act on education and hierarchical promotion but has not transmitted the Act. The Committee again requests the Government to provide in its next report the legislative provisions governing the labour relations of these workers and under which they benefit from the guarantees set forth in the Convention.

Article 6. With regard to the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in government departments or other public sector institutions and in private sector institutions that pursue social or public purposes enjoy the rights guaranteed in the Convention, the Committee notes that, according to the Government, no progress has yet been made in the reform of the above Act. The Committee recalls that under Article 6 of the Convention, only public servants engaged in the administration of the State may be excluded from its scope, and that the workers referred to in section 3(g) of the Civil Service and Administrative Careers Act do not fall into this category. The Committee again asks the Government to take steps to amend the abovementioned Act and to provide information on all such measures taken in its next report.

Lastly, the Committee notes that the United Workers’ Front (FUT) sent comments on the application of the Convention by a letter of 11 March 2003, objecting to section 8 of Executive Decree No. 44 of 30 January 2003 prohibiting an increase in wages and remuneration in the budgets of public sector entities for the financial year 2003. The Committee notes with regret that the Government has not sent its comments thereon. The Committee recalls that all workers in the public administration who are not engaged in the administration of the State must be able to enjoy the guarantees laid down in the Convention and, consequently, negotiate collectively their conditions of employment, including wages and that if, under an economic stabilization or structural adjustment policy, i.e. for imperative reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, these restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by adequate safeguards to effectively protect the standard of living of the workers concerned, in particular those who are likely to be the most affected (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 262 and 260).

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s comments.

Article 1 of the Convention. The Committee recalls that in its previous observation it had referred to the need to include provisions in the legislation which guarantee protection against anti-union discrimination at the time of recruitment. The Committee notes the Government’s statement that there do not exist acts of anti-union discrimination at the time of recruitment and that the rights and guarantees set forth in international instruments are directly applicable (article 18 of the National Constitution). In this respect, the Committee insists on the need to adopt the above provisions and requests the Government to provide information in its next report on any measure adopted in this respect.

Article 4. The Committee recalls that it had referred to the need to amend section 229 of the Labour Code, regarding the submission of a draft collective agreement, so that minority trade union organizations which do not include more than 50 per cent of workers subject to the Labour Code can negotiate, on their own or jointly, on behalf of their own members. The Committee regrets that the Government did not refer to this matter in its report. The Committee requests the Government to take measures to carry out the necessary amendments as soon as possible.

For several years the Committee has been referring to the need for teaching staff and heads of educational institutions, as well as those who carry out technical and professional functions in the education sector (who are subject to the laws respecting education and the salary scales of teachers), referred to in section 3(h) of the Civil Service and Administrative Careers Act, to benefit from the right to organize and bargain collectively, not only at the national level, but also at the local and establishment levels. Furthermore, in its previous observation, the Committee had noted the Government’s indication that the right of association of teaching staff is guaranteed throughout the entire country by the National Union of Education Personnel (UNE), through the existence of UNE branch offices at the local level in each province, and that teaching staff may also form associations in each educational institution, as actually occurs in practice. In this respect, the Committee requests the Government to provide information in its next report on the legal provisions governing the labour relations of these workers and under which they benefit from the guarantees set forth in the Convention.

Article 6. The Committee recalls that it had referred to the need to amend section 3(g) of the Civil Service and Administrative Careers Act so that workers in official departments or other public sector institutions, as well as private institutions in the social or public spheres, can enjoy the rights guaranteed in the Convention. The Committee regrets to note that the Government’s report does not refer to this matter. The Committee recalls that, under the terms of Article 6 of the Convention, only public servants engaged in the administration of the State may be excluded from its scope, but not the workers referred to in section 3(g) of the Civil Service and Administrative Careers Act. The Committee once again requests the Government to take measures to amend the above Act and to provide information in its next report on any measures adopted in this respect.

Finally, the Committee notes the Government’s statement that it is resolutely examining the adoption of all the suggested reforms which are necessary and desirable in the light of the Convention. In this respect, the Committee suggests that the Government should have recourse to the Office’s technical assistance to ensure that the amendments that are proposed are in full conformity with the provisions of the Convention. The Committee requests the Government to provide detailed information in its next report of any progress achieved in relation to the matters raised above.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report, as well as the information provided by a Government representative to the Conference Committee in June 1999, and the subsequent debate.

In its previous observation the Committee recalls that it had referred to the need to amend: (1) section 3, paragraph (g), of the Civil Service and Administrative Careers Act so that workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres can enjoy the rights guaranteed by the Convention; (2) include in its legislation provisions which guarantee protection against acts of anti-union discrimination at the time of recruitment; and (3) amend section 229, paragraph 2, of the Labour Code, regarding submission of a draft collective agreement, so that minority trade union organizations which do not include more than 50 per cent of workers subject to the Labour Code may negotiate, on their own or jointly, on behalf of their own members.

In this respect, the Committee regrets that the Government's report does not refer to these questions in a detailed manner. However, the Committee notes that the Government indicates its intent to guarantee the spirit and practice of the Convention and that new efforts are being made both in the Legislature and in other instances to achieve this. The Committee hopes that these will soon yield concrete results. The Committee expresses the firm hope that the measures adopted will permit, as soon as possible, the amendment of these provisions according to the terms of the Convention.

Finally, the Committee recalls that in its previous observation it had referred to the need to extend the right to organize and bargain collectively, not only at the national level but also at local and workplace levels, to teaching staff and heads of educational institutions as well as those who carry out technical and professional functions in the education sector (who are subject to the laws pertaining to education and the salary scales of teachers), referred to in section 3(h) of the Civil Service and Administrative Careers Act. In this regard, the Committee notes the Government's indication that the right of association of teaching staff is guaranteed throughout the entire country by the National Union of Education Personnel (UNE), by UNE branch offices at local level in each province and that teaching staff may also form associations in each educational institution as happens in practice. In this connection, so as to bring the legislation into full conformity with practice and with the provisions of the Convention, the Committee requests the Government to take the measures to amend the abovementioned legislation.

The Committee asks the Government to transmit in its next report detailed information on any progress achieved as regards the above questions.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report.

1. The Committee recalls that in its previous observation it had noted that two Bills were drafted in September 1997 during the course of a technical assistance mission requested by the Government. These draft Bills provide for:

-- the repeal of section 1 of Decree No. 2260 which imposes the requirement of the prior advice of the National Secretariat of Administrative Development (SENDA) on draft collective agreements in the public sector (a provision which in itself is not contrary to the Convention but the repeal of which was the subject of consensus by the social partners and the authorities interviewed by the mission); in its report, the Government indicates that SENDA no longer exists and that provisions are due to be taken concerning who will assume the responsibility for the functions discharged by this Institute or alternatively the provision noted by the Committee will no longer remain in force in the absence of a body to implement the standard; and

-- the addition to section 3, paragraph (g), of the Civil Service and Administrative Careers Act whereby workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres are covered by the Labour Code, thereby enabling these workers to enjoy the right to organize and the right to bargain collectively.

The Committee observes that the Government, referring to the technical assistance mission, indicates in its report that: (1) at no time has it rejected the possibility of proposing reforms to the legislation and if the Ministry of Labour found it necessary, it would have recourse once again to the technical assistance of the Office to update Ecuadorean labour legislation; (2) the Ministry of Labour is very well disposed to make best use of the positive aspects of the technical assistance mission which visited Ecuador in 1997; and (3) it requests the Committee to indicate what could be retained from the agreements reached during the 1997 mission in the light of the new political Constitution so that it can follow them up as appropriate.

In this regard, the Committee requests the Government to take the necessary measures to amend section 3, paragraph (g), of the Act pertaining to the Civil Service and Administrative Careers so that workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres enjoy the rights enshrined in the Convention.

2. The Committee recalls that in its previous observations it had requested the Government to take measures: (i) to include in its legislation provisions which guarantee protection against acts of anti-union discrimination at the time of recruitment; and (ii) to amend paragraph 2 of section 229 of the Labour Code relating to the submission of a draft collective agreement which provides in its second paragraph that "in public sector institutions, entities and enterprises or those in the private sector in the social or public sphere, in which no works committees exist, the workers subject to the Labour Code shall set up a sole central committee, be it on the national, regional, provincial or branch level, as appropriate, established by more than 50 per cent of the said workers" so that when minority trade unions do not meet this percentage, they may, on their own or jointly, negotiate at least on behalf of their own members. The Committee regrets to note that the Government's report does not mention these matters and once again requests it to take the necessary measures to amend these provisions in line with the requirements of the Convention.

3. Moreover, the Committee had noted in its previous observation that teaching staff and heads of educational institutions as well as those who carry out technical and professional functions in the education sector are subject to the laws pertaining to education and the salary scales of teachers referred to in section 3(h) of the Civil Service and Administrative Careers Act, and therefore do not enjoy the right to organize and to bargain collectively.

In this respect, the Committee notes that the Government indicates that although teaching staff and heads of educational institutions and others do not enjoy the right to organize or bargain collectively, they do have the right of association, through which they raise issues concerning their collective rights and defend those rights under the auspices of the National Union of Educational Personnel. Within the context of the special rules applying to them, these educational personnel use all valid means to further the aspirations and rights of their members, in a similar manner as do workers who enjoy the right to organize and bargain collectively.

In these conditions, the Committee would recall that the Convention guarantees the right to collective bargaining of teachers at all levels and requests the Government to take measures with a view to amending legislation so that teachers have the right to bargain collectively not only at the national level but also at the local and workplace levels.

4. The Committee expresses the firm hope that the Government will provide detailed information in its next report on any progress made with regard to the issues raised.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report.

The Committee observes that the Government requested the technical assistance of the Office to bring the legislation into conformity with the provisions of the Convention and that a mission visited the country from 4-10 September 1997. The Committee notes with interest that during the mission one Bill was drafted providing for the repeal or amendment of certain legislative provisions commented on by the Committee in its previous observations and direct requests.

Specifically the Committee observes that the draft Bill in question provides for (i) the repeal of section 1 of Decree No. 2260 which imposes the previous advice of the National Secretariat of Administrative Development on draft collective agreements in the public sector; and (ii) the addition to section 3, paragraph (g), of the Act pertaining to the Civil Service and Administrative Careers whereby workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres are covered by the Labour Code, thereby enabling these workers to enjoy the right to organize and the right to bargain collectively.

Moreover, the Committee notes that according to the mission report, teaching staff and heads of educational institutions as well as those who carry out technical and professional functions in the education sector are subject to the laws pertaining to education and the salary scales of teachers referred to in section 3(h) of the Civil Service and Administrative Careers Act, and therefore do not enjoy the right to organize and to bargain collectively.

Finally, the Committee recalls that in its previous observation it had requested the Government to take measures: (i) to include in its legislation provisions which guarantee protection against acts of anti-union discrimination at the time of recruitment; and (ii) to amend the unnumbered section in the Labour Code (which figures at the end of section 230) relating to the submission of a draft collective agreement which provides in its second paragraph that "in public sector institutions, entities and enterprises or those in the private sector in the social or public sphere, in which no works committees exist, the workers subject to the Labour Code shall set up a sole central committee, be it on the national, regional, provincial or branch level, as appropriate, established by more than 50 per cent of the said workers" so that when minority trade unions do not meet this percentage, they may, on their own or jointly, negotiate at least on behalf of their own members.

After having taken note of the mission report and the Government's report, the Committee finds it surprising that the Government does not mention in its report the draft Bill drawn up during the technical assistance mission. In these circumstances, the Committee must insist that the Government take the necessary measures as soon as possible to bring its legislation and practice into conformity with the Convention. The Committee expresses the firm hope that the Government will transmit information in its next report on any progress made relating to these questions raised for the past several years.

[The Government is requested to supply full particulars to the Conference at its 86th Session.]

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report, the comments of the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT) on the application of the Convention, and the Government's reply along with the conclusions reached by the Committee on Freedom of Association on Case No. 1617 (287th Report, paragraphs 60-65, approved by the Governing Body at its 256th Session, May 1993).

The Committee notes the Government's information that employees and officials in the public sector are governed not by the Labour Code but by the Civil Service and Administrative Career Act which does not provide for the right to collective negotiation. The Committee also observes that under section 2 of the Civil Service Act in question, the Act applies to anyone exercising public functions in fiscal branches or other institutions of public or private law with social or public functions. In turn, in accordance with section 3(g) of this Act, the workers in the institutions mentioned in section 2 are excluded from its application and, under 2(h), teaching staff in educational institutions who are governed by the Basic Laws on Education and Scales and Salaries of the Teaching Profession are also excluded.

In this matter, the Committee requests the Government to specify, first, whether the workers included in section 3(g) of the Civil Service Act mentioned above are covered by the Labour Code and, consequently, their trade union organizations are able to negotiate collectively. Secondly, the Committee requests the Government to specify whether the laws applicable to teaching staff under section 3(h) of the Act allow their trade union organizations to negotiate collectively, and to supply copies of the laws in question.

If the reply is negative, the Committee requests the Government to adopt the relevant measures so that these categories of workers are allowed, through their organizations, to negotiate collectively their conditions of work.

The Committee notes that according to the comments of the CEDOCUT the Telecommunications Corporation (EMETEL) issued resolution No. 93-32 on 6 May 1993 which approves economic and social benefits for workers "excluded from collective contracting", forcing them to resign from the trade union.

In this regard, the Committee reminds the Government that as it has ratified the Convention, under Article 1 it has undertaken to ensure that workers shall have adequate protection against acts of anti-union discrimination in respect of their employment or otherwise prejudice them. The Committee requests the Government to take the appropriate measures so that, in practice, EMETEL workers are not discriminated against in regard to economic and social benefits on grounds of trade union membership.

In relation to Executive Decree No. 2260 which, according to the comments of the CEDOCUT, delays and restricts the exercise of collective negotiation for public sector workers, the Committee, like the Committee on Freedom of Association, requests the Government to provide for a mechanism which ensures that, in the collective bargaining process in the public sector, with the sole possible exception of public employees engaged in the administration of the State both trade union organizations and the employers and their associations are consulted and may express their points of view to the National Secretariat for Administrative Development (the authority responsible for assessing the financial consequences of draft collective agreements) (see 287th Report of the Committee on Freedom of Association (Case No. 1617), paragraph 65).

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that its previous comments concerned:

- lack of protection against anti-union discrimination at the time of recruitment; and

- the requirement that 50 per cent of all workers in the public sector who are covered by the Labour Code, or in the private sector working in the social or public spheres, must be in a negotiating body in order to submit a draft collective agreement (section 230, as amended, of the Labour Code).

The Committee notes with interest that, according to the information supplied by the Government, section 43(f), as amended, of the draft reforms to the Labour Code which is before Congress protect the worker against acts of anti-union discrimination at the time of recruitment.

The Committee regrets to observe that in its report the Government has not replied to its comment that the requirement of 50 per cent of those workers in the public sector, or in the private sector working in the social or public spheres (who are covered by the Labour Code), must be in a negotiating body in order to submit a draft collective agreement (section 230, as amended, of the Code) is too high.

The Committee indicates that when the conditions referring to the number of members of a trade union or to the voting powers of workers in a negotiating body are such that the workers of a union may be deprived of the right to collective negotiation, even when there exists one, or more, legally constituted trade union, this legislation should recognize that the union or unions have the right to negotiate at least on behalf of their own members. Further, the Committee recalls that even in those systems in which a negotiating agent must be designated exclusively, when no trade union can be designated as representative due to the lack of the required percentage, the most representative trade union in the body, although it may not represent 50 per cent, must be recognized as having the right to collective bargaining.

The Committee asks the Government once again to adopt, as soon as possible, the necessary measures so that both legislation and practice are in full conformity with the provisions of the Convention, and that the frequently announced approval of draft legal reforms should take place in the near future.

The Committee requests the Government in its next report to inform it of any progress made in connection with its previous comments.

The Committee is also sending a direct request to the Government.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the conclusions of the Committee on Freedom of Association concerning Case No. 1617 (287th Report, paragraphs 60-66, approved by the Governing Body at its 256th Session, May 1993).

The Committee recalls that its previous comments concerned:

- lack of protection against acts of anti-union discrimination at the time of recruitment;

- the requirement that 50 per cent of all workers in the public sector who are covered by the Labour Code, or in the private sector working in the social or public spheres, have to establish a single central committee in order to submit a draft collective agreement (section 230, as amended, of the Labour Code);

- the ban on collective bargaining for public sector workers who are not covered by the Labour Code and are not engaged in the administration of the State.

The Committee notes that the Government's report does not reply to its comments on the lack of protection against acts of anti-union discrimination at the time of recruitment and on the ban on collective bargaining for public sector workers who are not covered by the Labour Code and are not engaged in the administration of the State. It therefore urges the Government to reply to these points as soon as possible.

With regard to the requirement in amended section 230 of the Code, the Committee notes the Government's indication that this provision on collective bargaining in the public sector merely establishes that when there are several trade union organizations in an institution or enterprise and none of them represents 50 per cent of the workers, a non-permanent committee ("single central committee") must be set up with representatives from the various trade union organizations, and must represent at least 50 per cent of the workers.

The Committee again points out that the legislation should allow a trade union organization representing less than 50 per cent of the workers to negotiate collective agreements directly, at least on behalf of its members.

While noting the Government's statement that the draft reforms bring the national legislation into conformity with the Convention, it is bound to note with regret that they have still not been adopted despite the time that has elapsed.

The Committee once again urges the Government to take the necessary steps to ensure that the amendments to the national legislation ensure the protection of workers against acts of anti-union discrimination at the time of recruitment, allow a trade union organization representing less than 50 per cent of the workers to negotiate collective agreements directly, at least on behalf of its members; allow public sector workers who are not covered by the Labour Code and who are not engaged in the administration of the State to bargain collectively. The Committee asks the Government to inform it in its next report of progress in the adoption of the above-mentioned amendments to the legislation.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee asks the Government to supply in its next report detailed information on the possibility for federations and confederations to bargain collectively, in particular at branch level (indicating law and practice).

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report, and in particular the adoption of Act No. 133 published in the Official Bulletin on 21 November 1991 to reform the Labour Code.

Article 1 of the Convention. The Committee notes with interest that the new Act No. 133 provides that employers may not dismiss any of their workers from the time that they notify the respective labour inspector that they have met in a general assembly in order to establish a workers' association until the first meeting of the executive committee, and that the same prohibition applies from the time that a draft collective agreement is submitted.

The Committee notes with regret that the above legal text does not contain amendments dealing with the lack of protection against acts of anti-union discrimination at the time of recruitment, despite the fact that the Committee has been pointing out for many years that the lack of such amendments is incompatible with the Convention.

Articles 4 and 6. The Committee takes due note of the fact that Act No. 133 introduces into the Labour Code the possibility for workers in the public sector who are covered by the Labour Code to be able to bargain collectively. Nevertheless, the Committee notes in this respect that by virtue of section 230, as amended, of the Labour Code, 50 per cent of all workers in the public sector who are covered by the Labour Code, or of the private sector working in the social or public spheres, have to establish a single national, regional, provincial or sectoral central committee, as appropriate, in order to submit a draft collective agreement. The Committee considers that as a minimum the most representative trade union organisation should be able to bargain collectively on behalf of its own members, even if its own membership does not reach the minimum level of 50 per cent established by the new Act (see paragraph 295 of the 1983 General Survey on Freedom of Association and Collective Bargaining). The Committee also notes that the imposition of a compulsory arbitration procedure before the Conciliation and Arbitration Court, if the parties do not reach agreement on a draft collective agreement, raises problems in relation to the application of the Convention.

Furthermore, the Committee regrets to note that no amendment has yet been made to the provision, which for many years the Committee has been drawing attention to is incompatible with the Convention, that prohibits public sector workers who are not covered by the Labour Code from bargaining collectively, since the only exception to the coverage envisaged by the Convention is public servants engaged in the administration of the State.

The Committee notes the Government's information concerning the submission on 22 May 1990 to the Secretariat of the National Congress by a member of the Congress of four draft texts of amendments and two legal interpretations, the purpose of which is to bring the national legislation into conformity with the Convention.

The Committee once again urges the Government to take the necessary measures in the near future to bring its law and practice into full conformity with the Convention and requests it to supply detailed information in this respect in its next report.

Finally, the Committee requests the Government to provide detailed information in its next report on whether federations and confederations can bargain collectively, particularly at the branch level (and to indicate the situation in law and practice).

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee refers to its comments under Convention No. 87 respecting protection against acts of anti-union discrimination at the time of recruitment, as follows:

The Committee takes note of the Government's report.

1. For many years, the Committee has been referring to the following provisions of the legislation which were incompatible with the requirements of Conventions Nos. 87 and 98:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443, paragraph 11, of the Code);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

The Committee recalls that, at the Government's request, an advisory mission visited Ecuador (November-December 1989) to examine, inter alia, questions relating to the application of Conventions Nos. 87 and 98. According to the mission's report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources, drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee noted that, according to the Government's report, these drafts were to be submitted immediately to Congress with the support of the Executive and its recommendation that they be adopted.

In this connection, the Government indicates in its latest report that the drafts prepared jointly by the above mission and the Government were formally submitted to the Secretariat of the Congress, but that it cannot guarantee that they will become law. Furthermore, the Government states in its report that, at the initiative of the Minister of Labour and Human Resources, labour experts are discussing the enactment of a new law to cover the unionisation of public employees in general.

The Committee stresses the importance of the provisions of the legislation which are incompatible with the requirements of Conventions Nos. 87 and 98, and asks the Government to report on progress with regard to the drafts submitted to Congress and on the status of the work to draft legislation on the trade union rights of public employees. It hopes that in its next report the Government will be able to indicate that there has been progress in the application of these Conventions.

2. Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in 1988. The CEDOC referred to a number of provisions which the Committee has already criticised and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the bye-laws of incipient organisations and, according to the CEDOC, decisions concerning refusal to register are illegally delegated to officials of a lower category.

The Government indicates that the CEDOC's comments refer to the period of the previous Government and that it is therefore virtually impossible for the present Government to give a detailed account of the activities of the Office of Trade Union Organisations during that period. The Government denies that decisions concerning registration are illegally delegated to officials of a lower grade.

In view of the Government's statement, the Committee invites the CEDOC to indicate whether its comments on the application of the Convention which it made when the former Government was in power still apply and, if so, to specify actual cases of infringements of the Convention.

The Committee notes that the Ecuadorian Confederation of "Classistas" Organisations (CEDOC) sent comments in 1989 which emphasised that General Clause 12 of the State's 1988-89 budget obstructs collective bargaining.

In this respect, the Committee notes that this General Clause provides: (a) for a report by the Ministry of Finance on draft collective agreements to determine, on the basis of the budget situation and the parties concerned, the limits up to which the public sector institution concerned may negotiate; (b) for a report by the Co-ordinating Office for Labour Matters of the President of the Republic on the draft collective agreement; (c) and for the wage increases in the public sector provided for in collective agreements not to exceed similar levels applied to public servants in general.

The Government states in its report that the State Budget contains a series of items with specific limits that may not be exceeded and that the intervention of the Ministry of Finance is intended to prevent this; the use of such funds for other purposes is considered to constitute the offence of "misappropriation of public funds" for which the cashiers, treasurers, accountants and chiefs of offices are held responsible.

The Committee considers that in the case of public servants who are not engaged in the administration of the State, bargaining rights must be protected. Where a state budget is set which purports to limit the money available for wage settlement, prior discussion with the nominal employer and the trade union organisations concerned are important. Subsequent bargaining at the workplace should also retain as much flexibility as possible so that it enjoys a substantial measure of effectiveness. The Committee asks the Government to supply in its next report information on progress achieved in this respect.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee refers to the comments made under Convention No. 87, concerning protection against acts of anti-union discrimination at the time of contracting, as follows:

The Committee takes note of the Government's report and the discussions that took place in the Conference Committee in 1989.

The Committe notes that, at the Government's request, an advisory mission visited Ecuador from 27 November to 1 December 1989 to examine questions relating to the application of Conventions Nos. 87 and 98, among others. According to the mission report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee notes that, according to the Government's report, these drafts are to be submitted immediately to Congress with the support of and recommendation for adoption expressed by the Executive.

The Committee has been pointing out that the following provisions of the legislation are incompatible with the requirements of the Convention:

- the prohibition placed on public servants from setting up trade union (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement to be Ecuadorian for membership of the executive committee of a works council (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443(11) of the Code);

- the penalty of imprisonment laid down by Decree No. 105 (7 June 1967) for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in a communication of 22 January 1988. The CEDOC referred to a number of provisions which the Committee has already criticised, and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the by-laws of incipient organisations and, according to the CEDOC, decisions concerning refusals to register are illegally delegated to officials of a lower category. Subsequently, on 13 April 1989, the CEDOC sent further comments stressing that General Clause 12 of the State's 1988-89 Budget obstructs collective bargaining. The Committee regrets that the Government has not replied in detail on these points.

The Committee requests the Government to inform it of progress in the passage of the drafts that have been submitted to Congress and expresses the hope that in its next report the Government will be in a position to indicate progress in the application of Conventions Nos. 87 and 98 and that it will send a detailed reply to the CEDOC's comments.