Report in which the committee requests to be kept informed of development - Report No 286, March 1993

1. 279. The complaint is contained in a communication from the Ecuadorian Confederation of Free Trade Unions (ECFTU) dated 28 July 1992. The Government transmitted its observations in a communication dated 26 January 1993.
2. 280. Ecuador has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 281. In its communication of 28 July 1992 the Ecuadorian Confederation of Free Trade Unions (ECFTU) alleged that, in official letter No. 122-DGT-OLE dated 26 February 1992, the General Director of Labour informed the leaders of the Union of Ecuadorian Shipping Transport Workers (TRASNAVE) (who had submitted the documents necessary for registration as a trade union) that they could not establish trade union organizations, since, according to the organic law of the armed forces, TRASNAVE is an organization attached to or dependent on the armed forces and, as such, its employees are equivalent to civilian employees of the army, a status that prevents them from forming any kind of trade union body. The complainant points out that TRASNAVE is engaged in the shipping of cargo belonging to private civilians, to various Ecuadorian and foreign ports. The complainant organization considers that the refusal to register the TRASNAVE workers' union constitutes a violation of Article 2 of Convention No. 87.

B. The Government's reply

1. 282. In a communication dated 26 January 1992 the Government states that, according to the organic laws of the armed forces and armed forces personnel, the civilian personnel of such forces are subject to special regulations, which exclude them from the scope of labour legislation. The Government adds that refusal to register the Ecuadorian Shipping Transport Union is based on the said organic laws (regulations concerning personnel and labour relations in the armed forces), to which the TRASNAVE workers were subject.
2. 283. The Government further points out that Article 9 of Convention No. 87 specifies that the extent to which this Convention shall apply to the armed forces and the police shall be determined by national laws and regulations. The Government states, in conclusion, that the labour authorities acted in strict compliance with the legislation in force, i.e. with the laws enacted by the National Congress to regulate personnel and labour relations within the armed forces, and that there was no violation of the freedom of association guaranteed by Convention No. 87.

C. The Committee's conclusions

1. 284. The Committee takes note that this question concerns refusal by the Ecuadorian Government to register a trade union comprising civilian employees of the armed forces. The complainant maintains that this act constitutes a violation of Convention No. 87, whereas the Government insists that the employees in question are governed by the organic law of the armed forces, which prevents them from establishing any trade union organization.
2. 285. The Committee is bound to form its opinion on the allegations presented in this case, in the light of the provisions of Convention No. 87, ratified by Ecuador, and in particular those of Article 2, under which workers and employees, without distinction whatsoever, have the right to establish organizations of their own choosing without previous authorization, and of Article 9, which allows States to determine the extent to which the guarantees provided for in this Convention shall apply to the armed forces.
3. 286. The question at issue is that of determining whether the workers who want to establish the Ecuadorian Shipping Transport Workers' Union can be equated to members of the armed forces within the meaning of Article 9 of Convention No. 87.
4. 287. The Committee has already had occasion to point out, as did the Committee of Experts on the Application of Conventions and Recommendations, that such members of the armed forces to be excluded from the application of Convention No. 87 should be defined in a restrictive manner. (See, for example, 238th Report of the Committee, Case No. 1279 (Portugal), para. 137, and Report III (Part 4A) of the Committee of Experts on the Application of Conventions and Recommendations, 1991, p. 310.)
5. 288. The Committee notes that the Government has not denied that the workers in question are engaged in civilian activity.
6. 289. In these circumstances, the Committee considers that the provisions of Convention No. 87 should be applied in the case of the TRASNAVE workers and, consequently, they should have the right to establish organizations of their own choosing without previous authorization. The Committee therefore requests the Government to take the necessary steps to ensure that the Ecuadorian Shipping Transport Workers' Union is legally registered and to inform the Committee of all decisions taken in this respect.