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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 33. The Committee last examined this case, which concerns allegations of
violations of freedom of association and collective bargaining in the public sector, at
its June 2017 meeting [see 382nd Report, paras 97–99]. On that occasion, the Committee
again urged the Government to: (i) keep it informed of any developments regarding the
return of union dues to the members of the National Federation of Workers of the State
Petroleum Enterprise of Ecuador (FETRAPEC); (ii) promote without delay the commencement
of discussions between FETRAPEC and the company with a view to reinstating the dismissed
trade union leaders, Mr Edgar de la Cueva, Mr Ramiro Guerrero, Mr John Plaza Garay and
Mr Diego Cano Molestina; (iii) take the necessary measures to ensure that an independent
investigation is conducted into the alleged mass anti-union dismissals that took place
at the E.P. PETROECUADOR enterprise in 2009 and 2010; (iv) inform it of the outcome of
the criminal proceedings against the workers who participated in a work stoppage at the
Unit for the Generation, Distribution and Commercialization of Electrical Energy of
Guayaquil (Unidad Eléctrica de Guayaquil) (hereafter the electricity company); and (v)
continue promoting dialogue with the representative trade union organizations. On that
occasion, the Committee invited the Government to be more cooperative in the
future.
- 34. The Government sent information in communications dated 22 October
2018 and 6 March 2020. With regard to the return of trade union dues to FETRAPEC
members, the Government recalls in its communication of October 2018 the legislation
applicable to the issue of the payment of trade union dues and states in particular that
it is the exclusive power of employers, at the request of the labour organization
(FETRAPEC), to withhold or deduct these values from the remuneration of workers and
deliver them directly to the beneficiary union, following for this purpose the
provisions of the Law on the Financing of Trade Union Confederations.
- 35. With regard to the reinstatement of the dismissed trade union
leaders, Messrs Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego Cano
Molestina, the Government reiterates in its 2018 communication that the workers were
subject to a despido intempestivo [immediate dismissal] and that they had signed their
severance agreements and received the compensation provided for in such a case, which
demonstrated their acceptance of their dismissal. In its 2020 communication, the
Government indicates that: (i) by means of a communication dated 20 September 2017, the
public enterprise Petroecuador (hereafter the oil company) stated that the legislation
applicable to public enterprises does not provide for reinstatement; (ii) on 31 May
2019, the aforementioned trade union leaders brought an action for non-compliance before
the Constitutional Court of Ecuador with a view to obtaining their reinstatement and
that this action was declared admissible; and (iii) pending the Court's judgment on the
merits, it is not for the Government to pronounce on this case.
- 36. In relation to the request for an independent investigation into the
alleged mass anti-union dismissals at the oil company in 2009 and 2010, the Government
describes the provisions of the Labour Justice Act, which entered into force in 2015,
concerning protection against anti-union discrimination. With regard to the outcome of
criminal proceedings concerning workers who participated in a work stoppage at the
electricity company, the Government states in its 2018 communication that while the
Ministry of Labour is not the competent entity to provide information on criminal
proceedings, it has nevertheless requested information in this regard from the National
Council of the Judiciary. Finally, the Government states that social dialogue with
representative organizations of employers and workers is one of the axes of the
Government’s policy.
- 37. Subsequent to the information provided by the Government and by means
of communications dated 12 November 2021 and 5 March 2022, the complainant organization
sent, for its part, additional information on the situation of the trade union leaders
dismissed in 2008, Messrs Edgar de la Cueva, Ramiro Guerrero, John Plaza Garay and Diego
Cano Molestina. In its communication of 12 November 2021, the complainant organization
states that, by means of a judgment of 29 September 2021, following the action for
non-compliance brought by the aforementioned trade union leaders, the Constitutional
Court ordered: (i) compliance with the Committee’s recommendations regarding the
reinstatement of the aforementioned trade union leaders; (ii) payment of an amount of
US$5,000 as non-pecuniary reparation; and (iii) the Ecuadorian State to make a public
apology. In its submission of 5 March 2022, the complainant organization states that:
(i) following the ruling of the Constitutional Court, Mr Edgar de la Cueva, Mr Ramiro
Guerrero and Mr Diego Cano Molestina returned to the jobs they had held in 2008, while
Mr John Plaza Garay was still in the process of taking steps to remove an impediment to
holding public office due to debts owed to the tax authorities that he had to assume
jointly and severally as legal representative of his trade union organization, the
Single Enterprise Committee of Workers of Petroecuador (CETAPE); (ii) despite the
requests of the trade union leaders, the aforementioned return to work has not been
formalized with a reintegration act, which prevents the workers from being paid the
remuneration they stopped receiving since 2008 and the social security rights they are
entitled to so that they can have a dignified retirement. Based on the above, the
complainant organization requests that the four union leaders be recognized and awarded
full reparation for the damage caused by their anti-union dismissal and the delay (13½
years) in reinstating them into their jobs.
- 38. The Committee takes note of the information provided by the
complainant organization and by the Government concerning the situation of the four
FETRAPEC leaders dismissed in 2008. The Committee takes note of the information provided
in 2020 by the Government concerning the initiation of an action in compliance with the
Constitutional Court by the aforementioned trade union leaders. The Committee notes in
this respect the subsequent information provided by the complainant organization on the
judgment handed down in this respect by the Constitutional Court on 29 September 2021 in
favour of the reinstatement of the trade union leaders. In this respect, the Committee
notes with interest that, following the aforementioned judgment, three of the four trade
union leaders of FETRAPEC have returned to the jobs they held before their dismissal in
2008, while the return of the fourth is being arranged. The Committee also notes that
the complainant organization claims that this return does not at this stage constitute
reinstatement, since it has not been accompanied by the payment of lost wages and social
security entitlements, and therefore requests full compensation for the damage caused by
the dismissal of the four leaders. The Committee recalls that it has considered that if
it appears that the dismissals occurred as a result of involvement by the workers
concerned in the activities of a union, the Government must ensure that those workers
are reinstated in their jobs without loss of pay [Compilation of decisions of the
Committee on Freedom of Association, sixth edition, 2018, para. 1169]. On the basis of
the above, and while noting that it has not received information from the Government
concerning the above-mentioned Constitutional Court judgment and its implementation, the
Committee requests the Government to facilitate without delay the holding of discussions
between FETRAPEC and the oil company with a view to the effective reinstatement of the
fourth trade union leader (Mr Garay) and the determination of an equitable solution for
the wages not received and social security entitlements of the four FETRAPEC leaders
dismissed in 2008. The Committee requests the Government to keep it informed in this
respect.
- 39. With regard to its other recommendations, the Committee regrets to
note that, despite the many years that have elapsed since the events at issue in the
present case, the Government has not reported on specific actions taken to resolve the
issues still outstanding and has not provided certain long-standing requests for
information. The Committee is therefore once again compelled to urge the Government to:
(i) keep it informed about the return of trade union dues to FETRAPEC members; (ii) take
the necessary steps to ensure that an independent investigation is carried out into the
alleged mass anti-union dismissals at the oil company in 2009 and 2010; and (iii) inform
it of the outcome of the criminal proceedings concerning the workers who participated in
a work stoppage at the electricity company.