Interim Report - Report No 348, November 2007

585. The complaint is contained in a communication from the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) dated 27 December 2006. The Government sent its observations in communications dated 16 February, 19 April and 7 May 2007.

1. 586. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 587. In its communication dated 27 December 2006, the CEOSL states that Executive Decree No. 1603 was published in Official Gazette No. 413 on 5 April 1994, laying down the regulatory provisions for the reorganization of the National Science and Technology System (SNCT) by dissolving the National Council for Science and Technology (CONACYT), and creating a system with four levels: political, executive-operative, support and financial. Within this structure, the Ministry of Science and Technology (SENACYT), under the Office of the Vice-President of the Republic, became part of the political level as the executive political body of the SNCT. Meanwhile, under the provisions of the aforementioned Executive Decree, the Foundation for Science and Technology (FUNDACYT) became part of the executive-operative and financial levels of the system. FUNDACYT was set up as a non-profit-making organization with legal personality by various figures in the field of science and technology, and its statutes were organized and drafted in line with the Civil Code.
2. 588. FUNDACYT, which is a private entity, obtains its economic resources primarily through its legal connection with the executive level. Since its creation, its founders envisaged that, in some cases, it would carry out certain activities indirectly because they were expressly prohibited by law and that, in others, it would allow them to exercise their abilities and capacities in an appropriate and timely manner within the framework of the SNCT, as established in Presidential Decree No. 1603. Article 4 of the aforementioned decree sets out the most relevant functions of FUNDACYT, which include: (a) planning, executing and monitoring the policies, strategies and medium- and long-term plans approved by the Ministry of Science and Technology; (b) proposing and setting the criteria for allocating resources to national programmes; (c) promoting and financing research projects, science and technology services and technological innovation; (d) promoting and financing the training of personnel to strive for excellence in science and technology; (e) promoting, financing and coordinating a national science and technology information system; (f) promoting and financing the necessary and relevant infrastructure and equipment for science and technology; (g) promoting and financing the management of technology in industry; (h) promoting and financing mechanisms to publicize, disseminate and popularize science and technology; (i) channelling the technical and financial cooperation negotiated by SENACYT; (j) administrating the financial resources provided by the Ministry of Science and Technology, or those obtained from multilateral credit bodies; and (k) collecting, generating, administrating and generally managing funds and/or its own resources and those that come from national or international, private or state sources, for scientific and technological purposes. Finally, it will be authorized to make and manage investments in national and international currencies. In short, FUNDACYT was set up as a private entity to carry out activities, and to take on the functions and duties assigned to it through the mandates, orders and instructions of SENACYT within the SNCT.
3. 589. On 18 July 2006, in the city of Quito, the first meeting of the workers of FUNDACYT took place under the protection of the provisions of the Political Constitution of the Republic of Ecuador, which establish the State’s obligation to guarantee and respect freedom of association. The exclusive goal of the meeting was to comply with sections 440, 447, 452 and the other relevant sections of the Labour Code by establishing a trade union. The principal motive for establishing the trade union was the atmosphere of instability, which was extremely worrying for the workers, and even now there is uncertainty about their future since the current Government, which is about to hand over power to the new President-elect, has decided to restructure the current SNCT, directly affecting the economic and financial operations of FUNDACYT and possibly even bringing about its dissolution – at present, this is practically a done deed.
4. 590. Complying with the strict legal requirements for establishing this type of organization, the constituent meeting of the workers of FUNDACYT took place and at that meeting the interim Executive Board was democratically appointed and the union’s draft statutes were discussed and approved. The Executive Board was instructed to proceed with the steps required by the competent state authority, in this case, the Ministry of Labour and Employment, to obtain, through the relevant administrative act, recognition of the trade union and the granting of legal personality in order to subsequently register this trade union, which was set up in accordance with the national laws in force. The time limit authorized by the law for the approval of statutes submitted to the Ministry is 30 days from the date of submission. The Labour Code establishes that approval of the statutes can only be withheld if they contain provisions contrary to the Constitution and/or the law. In other words, any refusal to register the organization could be based only on the reasons contained in the Labour Code (conflict between the statutory provisions and the Constitution or the law).
5. 591. The complainant organization adds that, to the surprise of the interim Executive Board of the trade union, on 17 August 2006, it received communication No. 366-GL-2006 dated 8 August 2006 from the Ministry of Labour and Employment, notifying the CEOSL, nine days after the publication of the administrative act, that approval for the trade union of FUNDACYT had not been granted. To explain the refusal, the Ministry of Labour and Employment stated that the constituent act of the trade union had allegedly not been signed by two employees of FUNDACYT, Ms Sandra Catherine Argotty Pfeil and Ms Monserrat Ivonne Cadena Barsallo, who had expressly stated that, on 18 July 2006, they were not present at the meeting to establish the trade union and “renounced” their membership of the trade union.
6. 592. To summarize, the Minister of Labour and Employment considered that the requirements of section 443 of the Labour Code had not been fulfilled, as the minimum number of 30 workers established by law were not present at the constituent meeting. Their letters of resignation from the union dated 8 August 2006, after the constituent meeting took place, confirm that Ms Argotty and Ms Cadena do not wish, for “personal reasons”, to continue “belonging to the trade union”. In this respect, there are three irregularities: first, a person’s renunciation of their trade union membership cannot be interpreted to mean, as the Minister says, that they were not present at the constituent meeting; second, the Minister does not apply section 464 of the Labour Code, establishing that “the fact that the number of members in a trade union falls below that established in paragraph 1 of section 459 does not give cause to dissolve a trade union that has already been established” and, according to the constituent act of the union, the minimum number of workers required by law was complied with, as the two women were present and, as proof of their agreement and approval, they signed the document; and third, the Minister of Labour and Employment denied the exercise of the right to defence and rebuttal by revealing the renunciations before issuing his administrative act, which denied the right to organize. Therefore, in addition to the legally protected right to organize, which the Minister of Labour was bound to respect, he also violated the right to dignity of those who attended the constituent meeting, including the two women who renounced their membership. It would not be right to hold a new constituent meeting, as advised by the Labour Department of the Ministry, as that would imply accepting that the 28 members of the organization had acted dishonestly.
7. 593. The CEOSL adds that the Ministry of Labour and Employment denied access to the file relating to this process, preventing anyone, and especially the members of the interim Executive Board of the trade union, from finding out the information available in the office of the Ministry, even though a request for access was made in writing to the Ministry’s Legal Management Unit.
8. 594. Although a specific mechanism exists in Ecuadorian law enabling an employer to request the dissolution of a trade union through legal proceedings presided over by a labour court judge and not through a simple administrative decision – made worse by the facts presented above, the workers of FUNDACYT decided to hold another constituent meeting of the trade union following the refusal to register the trade union. Accordingly, on 21 August 2006, the workers of FUNDACYT held a meeting with more participants than the minimum established by the law to prevent any trickery on the part of the authorities (even though this was not required by the labour laws) and a public notary attended to testify to the events. The Thirty-first Notary of the Canton of Quito was responsible for certifying the attendance of the constituent meeting and confirming that the required quorum was met. In their constituent meeting, the workers of FUNDACYT ratified their desire to establish a trade union, naming its interim Executive Board and initiating the steps required by law.
9. 595. This time, within the time limit established by law, the Minister of Labour and Employment, through Ministerial Agreement No. 0427 of 18 September 2006, approved the statutes of the trade union of FUNDACYT without amendment and, pursuant to the process laid down in the Labour Code, ordered the registration of the union through communication No. MFN 0034 of 19 September 2006. On that date, legal personality was granted to the trade union. Using that legal personality, on 27 September 2006, the trade union of FUNDACYT presented a draft collective agreement to the labour inspector of Pichincha (the competent authority) so that, once their employer had been informed, the working conditions at the Foundation could be established. The Chairperson and Legal Representative of the Foundation was notified of the draft agreement on 3 October 2006, although so far there has been no reply to the request to negotiate a collective agreement and, indeed, anti-union measures have been taken, such as the summary mass dismissal which took place, as explained below.
10. 596. The CEOSL states that on 18 October 2006, the constitutional President of the Republic of Ecuador issued Presidential Decree No. 1968 authorizing the Minister of Science and Technology to exercise and/or delegate, for as long as necessary, solely and exclusively, the legal representation of FUNDACYT, thereby putting an end to the lack of leadership suffered by the Foundation. Once the Minister of Science and Technology was appointed acting Chairperson and Legal Representative of FUNDACYT, on 19 October 2006, one day after Executive Decree No. 1968 was issued, he took his first action by ordering that ten workers should be denied access to the institution’s premises, which was enforced by heavily armed private security guards.
11. 597. Following this treatment, the ten workers were called to the meeting room of the FUNDACYT Chairperson, where he told them that a unilateral decision had been taken to terminate their employment, without citing any of the reasons for dismissal established in the law, for example in section 169 of the Labour Code. By so doing, he sought to remove the head of the trade union and abandon the collective bargaining process at the Foundation. Those who were dismissed had only demanded respect for their legitimate labour rights and had bravely denounced the irregularities that were taking place, not only on an industrial level, but in the field of science and technology on a national level.
12. 598. Through legal sophistry, the Minister of Science and Technology, appointed by the President of the Republic, has so far been trying to avoid paying the dues and compensation owed to the dismissed workers of FUNDACYT, as well as the wages of those who still work for the institution who have been urged to renounce their acquired rights, including the right to join a trade union (wrongly hoping that this will provide a legal justification for dissolving the trade union) and they have been offered posts in the new institution that will be responsible for scientific and technological research, which has been planned by the executive.
13. 599. The CEOSL alleges that on 29 November 2006, the Minister of Science and Technology, who is also the Legal Representative of FUNDACYT, filed an appeal for the review of Ministerial Agreement No. 00427 of 18 September 2006, approving the statutes and granting legal personality to the FUNDACYT trade union, with the Minister of Labour and Employment, in order to have the agreement annulled and declared invalid, arguing that “errors of form and substance were made in approving the union”. According to the CEOSL, this administrative appeal, which even contains drafting errors, is inadmissible, as it goes against the first part of the third paragraph of section 440 of the Labour Code, according to which “workers’ organizations can be suspended or dissolved only through oral proceedings as established in this Code”, and the oral proceedings, according to the Labour Code, must be conducted before a labour court judge. However, the Minister of Labour gave notice that he considered the administrative appeal admissible on 29 November 2006 and initiated the proceedings, even though the text of this appeal does not state who is the opposing party. The aforementioned administrative authority has arranged for this appeal to be lodged against Ms Rocío Jaramillo Subía, a technologist and General Secretary of the trade union of FUNDACYT and, therefore, its Legal Representative, even though the document does not contain her name, position or address.
14. 600. The CEOSL further alleges that the Minister for Science and Technology, Chairperson and Legal Representative of FUNDACYT, has urged those who still work at the Foundation not to become members of the trade union. The public authority is exerting pressure on and making demands of the workers to make them work at SENACYT, the public state institution which took over the functions and duties that had been conferred by law upon FUNDACYT.
15. B. The Government’s reply
16. 601. In its communication dated 16 February 2007, the Government states, with regard to the first refusal to register the trade union, that on page 42 of the file approving the statutes, there is an official document confirming that two workers from the institution declared before the Regional Labour Director of Quito that they had not known that the aim of the meeting was to establish a trade union and, therefore, their signatures did not reflect a wish to join the union or support its establishment. In this case, the actions of the Ministry of Labour were entirely valid, in accordance with section 448 of the Labour Code, the first paragraph of which establishes that “membership of any legally established association requires a written declaration stating that the individual wishes to join that association”. It was therefore not possible to make the establishment of the trade union legitimate and legal given the declarations of the two workers who intervened to express the aforementioned facts, which are the exclusive responsibility of those individuals and not of the Ministry of Labour, which followed the law in this case, as has been shown. Once the legal requirements had been fulfilled, approval was granted and the union was registered. In short, the Ministry of Labour and Employment cannot be held responsible for an administrative act resulting from the actions or declarations of third persons who, freely and voluntarily, decided to proceed in accordance with their individual and personal will.
17. 602. With respect to the fact that the FUNDACYT workers decided to associate and establish a trade union, it would be relevant to consider first whether these workers are subject to the provisions of the Labour Code. If so, there would be no problem with their having proceeded as they have done and in that case the Minister of Science and Technology would have transgressed the labour laws for the summary dismissal of ten workers on 19 October 2006, which would have been illegal. If that were not the case, that is to say, if the labour relations of the FUNDACYT employees are not regulated by the Labour Code, then they would be in the wrong, first, for submitting the notification that a trade union had been established and, second, for the processing and subsequent approval of the application for registration. Furthermore, the draft collective agreement would have been inadmissible.
18. 603. With regard to the complainant organization’s claim that the Minister of Labour did not listen to the directors of the organization before refusing to recognize the establishment of the trade union, the Government states that, in order to explain the actions of the Ministry of Labour, it would have looked at the file to confirm whether the workers’ request could have been dealt with in the time available and whether it was admissible, with regard to the provisions of section 444 of the Labour Code, which establishes a time limit of 30 days for the approval of the statutes of a workers’ organization, beyond which, by law, an organization will be recognized as having legal personality.
19. 604. With respect to the alleged failure to observe the rules of “due process”, it should be noted that due process is referred to in article 23, paragraph 27, and article 24 of the Political Constitution of the Republic and it is considered a constitutional guarantee in proceedings that result in a judgement; however, in this case, the Ministry of Labour has the authority to approve or refuse a request to establish a workers’ organization through an administrative procedure. Section 445 of the Labour Code allows for the refusal to register a trade union and section 448 establishes that workers must make an express declaration of their desire to associate. Chapter 1 of the section of the code on workers’ associations does not require the Ministry to “hear the opposing party” because, it insists, the process is not litigious but administrative calling for the fulfilment of set requirements. With regard to the Ministry of Labour denying access to the file relating to the case despite a written request to the Legal Management Unit of the Ministry, the Government states that, having reviewed the files, no such written request exists in its records.
20. 605. In its communication dated 14 March 2007, the Government states that it is necessary to establish the legal status of FUNDACYT, which was created by Executive Decree No. 1603, issued in Official Gazette No. 413 of 5 April 1999. Article 4 of its statutes states: “… FUNDACYT, a private, non-profit-making organization with social aims, operates as a technical and promotional body of the National Science and Technology System”. The Foundation was initially presided over by the Ministry of Science and Technology as established in article 3, clause (g) of the same statutes. However, it receives public funding as shown by article 2, clause (b) on public budgets of the section on the financial level. Through Executive Decree No. 1605 published in Official Gazette No. 416 of 8 April, FUNDACYT obtained legal personality as a private, non-profit-making entity governed by the provisions of the Civil Code, including section 583 of that Code [according to] article 1 of the aforementioned Decree. Executive Decree No. 1829 of 1 September 2006, organizes the SNCT to manage transparently the funds allocated to science and technology, it re-establishes the CONACYT as the guiding body of the SNCT, while SENACYT, under the Office of the President of the Republic, remains the executive body of the system. The functions carried out by FUNDACYT shall be transferred to SENACYT. Likewise, Decree No. 1830 reforms the operative regulations for managing CEREPS funds and replaces the word FUNDACYT with SENACYT.
21. 606. As a result of this reorganization, the personnel of FUNDACYT decided to establish a trade union, although the application was denied by the Ministry of Labour as it did not comply with the legal requirements. On 21 August 2006, the documentation relating to the organization of the trade union was presented again with a request for the employer to be notified. After being notified of the establishment of the trade union, Dr Luis Toñón Peña gave up his position as Legal Representative and Dr Nelson Gustavo Rodríguez Aguirre took his place as Executive Director of FUNDACYT and signed, as a worker, the constituent act of the trade union, along with other Directors: Ms Miriam Quinchimba, Administrative Financial Director; Dr Nelson Rodríguez, Technical Scientific Director; Dr Luis Toñón Peña, Director of Innovation and Dr Diego Almeida, Legal Adviser of FUNDACYT. It can be concluded from the above that these officials were not workers subject to the Labour Code but to administrative law as they are directors of an institution that receives part of its budget from state funds.
22. 607. Following the resignation of two members of the trade union, new personnel were contracted to join the trade union on trial contracts. It is important to highlight article 35, paragraph 9, of the Constitution, which states that: “With regard to those activities carried out by state bodies and which can be taken on, following complete or partial delegation, by the private sector, relations with the workers shall be governed by labour law, with the exception of executive, management, representative, advisory and departmental leadership functions or equivalent, which shall be subject to administrative law.” The establishment of the trade union and the subsequent presentation of the draft collective agreement seek to obtain compensation for these officials who do not receive a general worker’s salary, instead they are remunerated in accordance with their executive level, according to the assertions of the Legal Representative, the Minister of Science and Technology, in a communication to the Minister dated 30 October 2006. In this regard, the Government indicates that reference should be made to the letter written by Ms Rocío Salomé Jaramillo Subía, General Secretary of the FUNDACYT trade union, to the Minister of Labour as part of administrative process No. 057-2006, in which she states “in accordance with the relevant part of section 277, paragraph 4 of the Penal Code, I make this request as a public employee”. There is an apparent contradiction given that, on the one hand, she claims to be a private employee within the meaning of section 305 of the Labour Code, and on the other, claims to be a public employee.
23. 608. The Government indicates that the trade union was not established with the minimum of 30 workers, that FUNDACYT is a legal entity financed with state funds and that as the signatories to the act of constitution are, in accordance with section 36 of the Labour Code, representatives of the employer, jointly responsible for relations with the workers, they cannot participate in a trade union. Through Executive Decree No. 1968 published in Official Gazette No. 387 of 30 October 2006, the President of the Republic issued amendments to Executive Decree No. 1829 and added a transitional provision stating: “Sixth.– Exceptionally the Minister of Science and Technology is authorized to exercise or delegate, for as long as necessary, solely and exclusively, the legal representation of the Foundation for Science and Technology (FUNDACYT), in order to ensure that all information and tangible or intangible property is returned to the Ministry of Science and Technology (SENACYT), including that which is on loan for use or subject to any other legal terms. The corresponding inventory has been drawn up in accordance with this decree”. This amendment confirms the constitutional principle that those who exercise executive, management or other similar positions are subject to administrative law.
24. 609. In view of the above, the Minister of Science and Technology and Legal Representative of FUNDACYT submitted an extraordinary appeal for review citing article 178, clause (a) of the Legal and Administrative Statutes of the Executive, with the aim of annulling Ministerial Agreement No. 00427 of 18 September 2006, which approved the FUNDACYT trade union.
25. 610. On 22 December 2006, the Minister of Labour and Employment accepted this appeal and initiated proceedings. He notified all interested third parties, as laid down in the Legal and Administrative Statutes of the Executive, who appeared at the proceedings. The appeal complied with all legal requirements and was designated No. 057-2006. On 2 February 2007, the hearing took place for those involved in the proceedings of the appeal for review No. 057-2006. On 22 February 2007, the appeal for review was concluded with a decision to accept the appeal for review presented by the Minister of Science and Technology thereby annulling Ministerial Agreement No. 00427 of 18 September 2006, which approved the FUNDACYT trade union. As a result of this decision, it can be concluded: (1) from the preamble to the decision on the extraordinary appeal for review, which explains and confirms that the employees of FUNDACYT are not covered by the Labour Code, that the summary dismissal alleged by the CEOSL did not take place, since summary dismissal is a concept contained in the Labour Code, which applies to those who are classified as workers; (2) with respect to the presentation of the draft collective agreement, that it is necessary to emphasize that paragraph 2 of the decision clause of the decision orders a copy of the decision to be sent to the Regional Labour Directorate of Quito, so that the Legal Management Unit and Register of the Labour Inspectorate may proceed in accordance with the law by recording in the relevant file that the agreement has been annulled and that it is therefore no longer in force. The Labour Inspectorate shall abandon its proceedings regarding the draft collective agreement, given that these proceedings must fulfil certain requirements, which is no longer possible in this case. The Government states that it is necessary to make clear that due process was respected throughout the proceedings relating to the extraordinary appeal for review and that both parties were guaranteed the right to defence. The decision issued was based on the constitutional and legal regulations in force in the Ecuadorian legal system.
26. 611. In its communication dated 7 May 2007, the Government sent copies to the trade union of the renunciations of 31 members who had been named as officials of that union, as well as copies of the dismissal appeals submitted to the judicial authority by Mr Norman Ricardo Quintana Ramírez, Legal Defence Secretary of the Executive Board of the FUNDACYT trade union and by Ms María Isabel Cevallos Simancas, Records and Communications Secretary of the Executive Board of the FUNDACYT trade union.

C. The Committee’s conclusions

1. 612. The Committee notes that, in this case, the complainant organization alleges that, following relatively long proceedings, in September 2006, the administrative authority approved the statutes and registered the trade union of FUNDACYT; that the authorities of the Foundation submitted an extraordinary appeal for review calling for the ministerial agreement approving the FUNDACYT trade union and granting it legal personality to be annulled and declared invalid; that the FUNDACYT authorities have not responded to the request to negotiate a collective agreement and that, in retaliation, ten workers were dismissed without compensation. It further alleges that the FUNDACYT authorities are urging the workers to give up their membership of the workers’ organization.
2. 613. With regard to the extraordinary appeal for review submitted by the FUNDACYT authorities calling for the ministerial agreement approving the FUNDACYT trade union and granting it legal personality to be annulled and declared invalid, the Committee notes the Government’s statement to the effect that: (1) the trade union was not established with the minimum of 30 workers, FUNDACYT is a legal entity financed with state funds, and as the signatories to the act of constitution are, in accordance with section 36 of the Labour Code, representatives of the employer, jointly responsible for relations with the workers, they cannot participate in a trade union; (2) in view of the above, the Minister of Science and Technology and Legal Representative of FUNDACYT submitted an extraordinary appeal for review citing article 178, clause (a) of the Legal and Administrative Statutes of the Executive, with the aim of annulling Ministerial Agreement No. 00427 of 18 September 2006, which approved the FUNDACYT trade union; (3) on 22 December 2006, the Minister of Labour and Employment accepted this appeal and opened proceedings; he notified all interested third parties, as laid down in the Legal and Administrative Statutes of the Executive, who appeared at the proceedings; the appeal complied with all legal requirements and was designated No. 57-2006; (4) on 2 February 2007, the hearing took place for those involved in the proceedings of appeal for review No. 057-2006; (5) on 22 February 2007, the proceedings were concluded with a decision to accept the appeal for review presented by the Minister of Science and Technology thereby annulling Ministerial Agreement No. 00427 of 18 September 2006, which approved the FUNDACYT trade union; and (6) due process was respected during the proceedings relating to the extraordinary appeal for review and both parties were guaranteed the right to defence.
3. 614. The Committee observes that the decision of the extraordinary appeal for review provides that:
4. FOURTH – Section 459 of the Labour Code, concerning the constitution of trade unions, provides that “a ‘comité d’empresa’ (trade union) may be set up in every undertaking where 30 or more persons are employed, on the understanding that the following rules must be followed: (1) In order for the trade union to be properly constituted, the number of workers stated in Section 452 of this Code must necessarily participate in the constituent committee;”. Section 452 states that “A trade union shall not be deemed to be duly constituted unless over 50 per cent of the workers in the undertaking attend the founders’ meeting, but in no case can the trade union be constituted with less than 30 workers …” The file contains the constituent act of the trade union of the workers of the Foundation for Science and Technology (FUNDACYT), which refers to the provisional executive committee consisting of: Rocío Jaramillo Subía, General Secretary; Miriam Quinchimba Alvarez, Finance Secretary; Ricardo Quintana Ramírez, Legal Defence Secretary; María Isabel Cevallos, Communications and Records Secretary. With regard to the role of FUNDACYT employees, the Ecuadorian Institute of Social Security issued a statement on 21 August 2006, noting that the following individuals occupied certain posts: Rocío Jaramillo Subía, Head of the Information Centre; Miriam Quinchimba Alvarez, Administrative Financial Director; Ricardo Quintana Ramírez, Legal Adviser; María Isabel Cevallos, journalist. Furthermore, the constituent act of this committee was signed in support by, among others, employees with management responsibilities, departmental heads, advisers and even executives. Therefore, the trade union was constituted by employees whose labour relations are subject to administrative law. In this regard, Section 9 of the Labour Code states that “Workers are those who undertake to provide a service or carry out work. Such individuals are held to be workers and may be employees or labourers”. FIFTH. – Section 1 of the Statues of the FUNDACYT, Executive Decree No. 1605, published in the Official Record No. 416 of 8 April 1994, states that: “The Foundation for Science and Technology (FUNDACYT), a private non-profit-making civil society, is hereby granted legal personality and its existence as a private, not-for-profit legal entity is approved …” According to the constituent act of assembly, Mr. Nelson Gustavo Rodríguez Aguirre, who was serving at the time as executive director of the institution, was a worker signatory to the constitution of the trade union. In this regard, Section 35:9, second indent, of the Political Constitution of the Republic states that: “Relations of the institutions covered by items 1, 2, 3 and 4 of Section 118 and of the legal entities established by law for the exercise of State power, with their servants shall be subject to the laws governing the public administration, except for those of labourers which shall be governed by labour law”. It should be noted in this respect that indent four of the abovementioned Section states that: “With regard to those activities exercised by the institutions of the State and which can be carried out, following complete or partial delegation, by the private sector, relations with the workers shall be governed by labour law, with the exception of executive, management, representative, advisory functions or functions of departmental heads or equivalent, which shall be subject to administrative law.” That is to say, in line with the terms of the Labour Code, a trade union shall not be deemed to be duly constituted unless over 50 per cent of the workers in the undertaking attend the founders’ meeting, or unless there are at least 30 workers. This provision was clearly violated, given that, according to the documentation relating to this case, 32 persons signed the constituent act of the organization, of whom eight are not workers subject to the Labour Code but rather employees subject to administrative law. In this regard, Section three of the Organic Law concerning the Civil Service and Administrative Careers and the Standardization of Public Sector Wages states that “Scope. The provisions of the present law are compulsory throughout all State institutions, entities and bodies. Moreover, they are applicable to corporations, foundations, enterprises, companies and corporations in general in which State institutions are majority shareholders or to which they have made a full or partial capital contribution or an asset contribution of at least 50 per cent”. SIXTH. – Given that the trade union was not constituted with a minimum of 30 workers and that FUNDACYT is a legal entity financed with State funds, and that the signatories to the act of constitution were, in line with Section 36 of the Labour Code, representatives of the employer, jointly responsible for relations with the workers, they could not participate in a trade union. SEVENTH. – The very fact that the text of Section 459:1 of the Labour Code was disregarded provides more than enough grounds for declaring that the issuing of the administrative act approving the statutes of the trade union of the workers of FUNDACYT was a clear error of law, without respect for the constitutional and legal provisions in force. In light of the above, by the power invested in it by the Political Constitution of the Republic and the Statutes of the Legal and Administrative Regime of the Executive Function, this authority RESOLVES: (1) to accept the extraordinary appeal for review lodged by Bernardo Creamer Guillén, Minister for Science and Technology and Legal Representative of FUNDACYT and, consequently, to render ineffective Ministerial Agreement No. 00427, of 18 September 2006, though which Dr José Serrano Salgado, Minister of Labour and Employment at the time, approved the statutes of the trade union of the workers of FUNDACYT.
5. 615. The Committee considers that the workers whose labour relations are governed by the Labour Code and those whose labour relations are governed by the laws regulating the public administration should enjoy, by virtue of the provisions of Article 2 of Convention No. 87, the right to establish organizations of their own choosing, subject only to the rules of the organization concerned. The Committee has taken due note of the Government’s argument that some workers who belonged to the trade union were, in fact, in positions of trust with regard to their employer, including the executive director of the institution.
6. 616. Furthermore, the Committee observes, with regard to this question, that for many years, the Committee of Experts on the Application of Conventions and Recommendations has referred to the need to reduce the minimum number of workers (30) required to establish associations, trade unions or assemblies (sections 450, 466 and 459 of the Labour Code), and to guarantee public servants the right to establish organizations to further and defend their occupational and economic interests (sections 59(f), 60(g) of the Public Service and Administration Careers Act and [article] 45, paragraph 10, of the Political Constitution) [see Report III (Part 1A) of the Committee of Experts, 2006, p. 86 of the English text]. The Committee reminds the Government that it may avail itself of the technical assistance of the Office in relation to these questions. In these circumstances, the Committee requests the Government to take the necessary measures without delay to guarantee this right to the workers of FUNDACYT, allowing them to establish a trade union if they so desire, and if they have met the legal requirements that are in conformity with Convention No. 87.
7. 617. With regard to the FUNDACYT authorities’ alleged failure to respond to the request to negotiate a collective agreement, the Committee notes the Government’s statement emphasizing that paragraph 2 of the decision on the aforementioned appeal for review, orders a copy of the resolution to be sent to the Regional Labour Directorate of Quito, so that the Legal Management Unit and Register of the Labour Inspectorate may proceed, in accordance with the law, by recording in the relevant file that the agreement granting legal personality to the trade union has been annulled and is no longer in force. The Labour Inspectorate shall abandon its proceedings relating to the draft collective agreement, given that these proceedings must fulfil certain requirements, which is no longer possible in this case. In this respect, the Committee expects that if, in future, a new trade union is established in FUNDACYT, the Government will take the necessary measures to guarantee the right to free collective bargaining between the parties.
8. 618. With regard to the allegations relating to the dismissal of ten FUNDACYT workers without compensation, following the request to negotiate a collective agreement, and the allegations that the FUNDACYT authorities are urging workers not to join the trade union, the Committee notes the Government’s information to the effect that: (1) in the preamble to the decision on the extraordinary appeal for review, it is explained and confirmed that FUNDACYT employees are not covered by the Labour Code, thus confirming that the summary dismissal alleged by the CEOSL did not take place since summary dismissal is a concept contained in the Labour Code, which applies to those who are classified as workers; (2) Mr Norman Ricardo Quintana Ramírez, Legal Defence Secretary of the Executive Board of the FUNDACYT trade union, and Ms María Isabel Cevallos Simancas, Records and Communications Secretary of the Executive Board of the FUNDACYT trade union, have appealed against their dismissals; and (3) all those who were designated officials and members of the trade union have decided to give up their membership. On this matter, the Committee observes that the Government provides no information as to why the officials and workers decided to give up their membership of the trade union; and, taking into account the particulars of this case, the Committee cannot rule out the possibility that the facts alleged by the complainant organization may have taken place at the request of the authorities. The Committee recalls that “anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions” and that “in no case should it be possible to dismiss a trade union officer [or member of a trade union] merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 769 and 808]. In these circumstances, the Committee requests the Government to provide information as soon as possible on: (1) the result of the judicial proceedings under way relating to the dismissal of the trade union officials, Ms María Isabel Cevallos Simancas and Mr Norman Ricardo Quintana Ramírez; (2) the other eight dismissals; and (3) the reason why the officials and members of the FUNDACYT trade union gave up their membership.