Definitive Report - Report No 308, November 1997

1. 241. The complaints in this case are contained in two communications from the Latin American Central of Workers (CLAT) dated 20 November and 12 December 1996. The Government sent its observations in a communication dated 9 September 1997.
2. 242. 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. 243. In its communication dated 20 November 1996, the Latin American Central of Workers (CLAT) states that the Chairman of the Board of PETROECUADOR has not spared any efforts in his persecution of the trade union organizations and their officers in the enterprises which make up the PETROECUADOR group; he has dismissed and engineered the dismissal of various workers, thus violating the guarantee of stability provided for in the collective agreements in force in the subsidiary enterprises of PETROECUADOR. In concrete terms, the complainant alleges the following:
   • - insults directed at Mr. Marcelo Román, Vice-President of the National Federation of Workers of the State Petroleum Enterprise of Ecuador (FETRAPEC) and workers' representative to the board of directors of the state enterprise PETROECUADOR, and his unwarranted dismissal;
   • - the smear campaign against the workers of PETROECUADOR and in particular against Ms. Olga Chamba, Secretary for Minutes and Communications of the Single Enterprise Committee of Workers of PETROECUADOR (CETAPE), which was denounced to the Attorney-General (the complainant annexes to its complaint pamphlets of insulting content with drawings of a pornographic nature);
   • - the unwarranted dismissals of workers for having denounced such attacks. Among those dismissed were Mr. Germánico Avila Acosta, Secretary of Labour Affairs of the Enterprise Committee of Workers of PETROCOMERCIAL and the Secretary for Minutes and Communications of FETRAPEC, and Ms. Olga Chamba, officer of CETAPE, dismissals which took place on 14 and 15 October 1996 respectively, and which were notified to the Ministry of Labour;
   • - the public declarations of the Minister for Energy and Mines in which he mentions his desire to "eliminate the unions, against which (he is) fighting, from the petroleum sector", and
   • - the smear campaign against union officers and the union organization using fake compilations of CETAPE documents, acts which were denounced to the President of the National Congress and other authorities.
2. 244. Likewise, the complainant adds that the governing body of PETROECUADOR in an attack against freedom of association, issued resolution No. 270-CAD dated 8 October 1996 which sets out the following:
3. 1. That the Inspector-General of State be requested to make a special examination of the expenditures of the trade union associations of the PETROECUADOR system and their revenues received:
   • (a) through subsidies made by PETROECUADOR and its subsidiaries, equivalent to 40,000 sucres annually for each workers covered by the respective collective agreements;
   • (b) through discounts of 1 per cent from each worker, and from special dues.
4. 2. That an audit be carried out of the work and union leave of the representatives of workers' associations of PETROECUADOR and its subsidiaries, on the basis of the stipulations contained in the respective collective agreements ...
   • With regard to this resolution by the governing body of PETROECUADOR , the auditor-general of PETROECUADOR requested the officers of each one of the enterprise committees existing within the PETROECUADOR system to inform him about: the total amount of assets assigned by the enterprise, in fulfilment of the collective agreement, as established; the number of the current account and the banking institution in which these assets are managed; the programme of specific expenses to be met with these funds; and to indicate whether these assets are kept registered and administered separately from the contributions made by the workers as members of the union organization.
5. 245. In its communication dated 12 December 1996, the Latin American Central of Workers alleges the dismissal of a high-ranking union officer of the PETROECUADOR enterprise. On 3 December, the executive chairman of PETROECUADOR (and legal representative of the said enterprise) went for an audience with the Provincial Labour Inspector of Pichincha to request the immediate dismissal of Mr. Iván Narváez Quiñónez, President of FETRAPEC (National Federation of Workers of the State Petroleum Enterprise of Ecuador) and officer of CETAPE (Single Enterprise Committee of Workers of PETROECUADOR). Having been notified of this decision, the union officer presented himself at the instructed time at the Pichincha Labour Inspectorate to contest this decision which he considered completely unfounded and illegal. Certain declarations by the Minister of Energy and Mines, in which he describes this union leader in very negative and disrespectful terms, lead CLAT to conclude that this dismissal - like the previous ones - also has an anti-union nature and moreover violates union immunity.
6. 246. The complainant adds that, by order of the Minister of Energy and Mines, PETROECUADOR enterprise - and specifically the union premises - had been militarized, in violation of national laws. In this context, there is serious reason to fear for the life and physical integrity of the union officers in this enterprise. In view of what has been set out previously, the union officers of PETROECUADOR enterprise cannot freely carry out their activities in defence of workers' rights.

B. The Government's reply

1. 247. In its communication dated 9 September 1997, the Government declares the following in connection with the allegations presented:
   • - the dismissal of Mr. Marcelo Román. The manager of PETROINDUSTRIAL, by means of resolution No. 97029, dated 27 March 1997, on the basis of Executive Decree No. 92, published in Official Register No. 13, supplement dated 28 February 1997, determined to remove from force resolution No. 96063, dated 1 October 1996, by means of which Mr. Marcelo Román was relieved of his duties as industrial technician class II in the state refinery of Esmeraldas, restoring him to his post and granting him his corresponding rights, that is to say the remunerations, salary and emoluments not received from the date of his suspension until his reinstatement. The Government annexes to its reply a copy of resolution No. 97029 and contract record No. 97003 which Mr. Marcelo Román signed in the presence of the Labour Inspector of Pichincha;
   • - the smear campaign against the workers of PETROECUADOR and the case of Ms. Olga Chamba. In connection with the insults hurled at the workers of PETROECUADOR by the ex-Minister of Energy and Mines, these were denounced and in due course brought as a complaint by the workers before the President of the Supreme Court of Justice because of the immunity held by the Minister (precluding his being tried in a lower court). According to Ecuadorian legislation, slander offences can only be pursued and judged through personal accusation; therefore it is necessary for the injured (slandered) persons to institute proceedings individually;
   • - the dismissal of Miss Olga Chamba. She has been reinstated to her duties in PETROECUADOR and has signed contract record No. 97016, dated 11 April 1997, by means of which she is granted all her rights infringed upon during the government of ex-President Abdalá Bucaram Ortiz, infringements which were rectified by Executive Decree No. 92, issued by the interim government of President Fabián Alarcón. When Ms. Chamba was reinstated to her position, she was granted the pay and remunerations not received during the time that she was away from the enterprise. The Government annexes to its reply a copy of contract record No. 97016, dated 11 April 1997, signed between the executive chairman of PETROECUADOR and the above-mentioned worker;
   • - the dismissal of Mr. Germánico Avila Acosta. The acting manager of PETROCOMERCIAL, a subsidiary enterprise of PETROECUADOR, signed on 17 March 1997 the contract by means of which Mr. Germánico Avila Acosta was reinstated to his position as administrative specialist class II, the same function that he was performing at the time of his removal. In the same way, PETROCOMERCIAL granted him the pay of his salary, remunerations and emoluments which the said worker had ceased to receive from the date that his dismissal came into force until his reinstatement. The Government annexes to its reply a copy of the contract record signed on 17 March 1997 between engineer Alberto Burbano and Mr. Germánico Avila;
   • - public declarations and smears made by the Minister of Energy. The ex-Minister of Energy and Mines, on various occasions and by different modes of communication, hurled insults, slander and threats against the workers of the PETROECUADOR system and its unions, as part of a state policy with a trend towards repressing and infringing upon the rights of workers, a situation which ended once the National Congress relieved ex-President Abdalá Bucaram of his duties on 5 February 1997; the actions taken are the exclusive and personal responsibility of the protagonist;
   • - resolution No. 270-CAD-96, of 8 October 1996. With regard to the said resolution which ordered a request for the Inspector-General of State to make a special examination of the expenses and revenues received by union organizations of the PETROECUADOR system, the Government states that the secretary-general of CETAPE presented an appeal for habeas corpus to the Constitutional Court and it is this body that must rule on the legality of the resolution opposed by the union organization; in the meantime the resolution is in suspension until the Constitutional Court gives its verdict;
   • - the dismissal of Mr. Iván Narváez. Mr. Iván Narváez Quiñónez performed the duties of environmental protection specialist class II in the environmental protection unit of PETROECUADOR until 2 January 1997, date on which the Labour Inspector of Pichincha gave approval to terminate labour relations with this worker. On the legal basis of Executive Decree No. 92, Mr. Iván Narváez was reinstated in PETROECUADOR through resolution No. 97028, dated 21 March 1997, and the enterprise paid all that it owed to the said worker which he had not received from November 1996 until his reinstatement in the enterprise. It should be pointed out that Mr. Iván Narváez was reinstated as chief of the environmental protection unit. The Government annexes to its reply a copy of contract record No. 97028, signed on 18 April 1997 between Dr. Rafael Almeida Mancheno and Mr. Iván Narváez Quiñónez;
   • - raiding of trade union premises. The ex-Minister of Energy and Mines raided the premises of CETAPE (Single Enterprise Committee of Workers of PETROECUADOR) and of FETRAPEC (National Federation of Workers of the State Petroleum Enterprise of Ecuador) and placed them in the custody of private security guards. Aware of this situation, the new authorities of the enterprise arranged to hand over the premises to representatives of the labour organizations affected, once the said minister ceased his duties.
2. 248. Finally, the Government states that the allegations presented all come within the period of the government of ex-President Abdalá Bucaram, and that the current Government, on the basis of the resolution issued by the National Congress on 5 February 1997, issued Executive Decree No. 92, published in Official Register No. 13, supplement dated 28 February 1997, and rectified all the illegal actions committed against workers by the previous government. Likewise, the Government states that currently relations between the workers and the bosses are carried out within a framework of cordiality and mutual respect, in accordance with the legal and contractual norms in force.

C. The Committee's conclusions

1. 249. The Committee observes that the allegations refer to the dismissal of trade union officers in the enterprise PETROECUADOR, to a smear campaign against union officers of the Single Enterprise Committee of Workers of PETROECUADOR (CETAPE) and to declarations by the Minister of Energy and Mines against the union movement in the petroleum sector, to the interference of the management of PETROECUADOR enterprise in the financial administration of the trade union organizations of PETROECUADOR, and to the raid by military personnel of the union premises of PETROECUADOR enterprise. The Committee takes note that these actions took place during the mandate of the former president (dismissed by the National Congress on 5 February 1997) and observes with interest that the new Government has rectified most of the damaging actions and that the remaining matters have been submitted to the legal authorities.
2. 250. With regard to the allegation about dismissals of trade union officers (Marcelo Román, Germánico Avila Acosta, Iván Narváez Quiñónez and Ms. Olga Chamba) in PETROECUADOR enterprise, the Committee notes with interest the Government's statement that the trade union officers in question have been reinstated in their jobs (the Government annexes to its reply a copy of the administrative decisions by which the reintegration of the trade union officers was arranged).
3. 251. With regard to the allegation about the smear campaign against union officers and members of trade union organizations in PETROECUADOR enterprise (the complainant annexed to its complaint pamphlets of insulting content with pictures of a pornographic nature which had allegedly been distributed), the Committee takes note that the Government states that the victims of this offence denounced this action to the legal authorities.
4. 252. With regard to the allegation about public declarations by the Minister of Energy and Mines in which he mentioned his desire to "eliminate unions from the petroleum sector", the Committee takes note that the Government confirms that the ex-minister in question hurled insults, slander and threats against the workers of PETROECUADOR enterprise and its unions as part of a state policy with a trend towards repressing the rights of the workers, but that the said situation ended once the National Congress relieved the President of the former Government of his functions on 5 February 1997.
5. 253. With regard to the allegation about the interference of the PETROECUADOR enterprise authorities in the financial administration of union organizations, by virtue of the promulgation of resolution No. 270-CAD of the governing body of PETROECUADOR on 8 October 1996 (the text of the said resolution was transcribed in the allegations of the complainant; the said resolution sets out in general terms that the Inspector-General of State should make a special examination of the revenues and expenditures of the union organizations), the Committee takes note of the Government's statement that one of the union organizations of PETROECUADOR (CETAPE) presented an appeal for habeas corpus against the said resolution to the Constitutional Court, which is the body that must rule on the legality of the resolution, and that until the said body has reached a verdict the resolution in question is suspended.
6. 254. In this connection, the Committee recalls that "the control exercised by the public authorities over trade union finances should not normally exceed the obligation to submit periodic reports. The discretionary right of the authorities to carry out inspections and request information at any time entails a danger of interference in the internal administration of trade unions" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 443). The Committee likewise recalls that "as regards certain measures of administrative control over trade union assets, such as financial audits and investigations, the Committee has considered that these should be applied only in exceptional cases, when justified by grave circumstances (for instance, presumed irregularities in the annual statement or irregularities reported by members of the organization), in order to avoid any discrimination between one trade union and another and to preclude the danger of excessive intervention by the authorities which might hamper a union's exercise of the right to organize its administration freely, and also to avoid harmful and perhaps unjustified publicity or the disclosure of information which might be confidential" (see Digest, op. cit., para. 444).
7. 255. On the other hand, the Committee cannot refrain from observing that the resolution in question was issued within the framework of a series of acts of discrimination against the trade union organizations of PETROECUADOR enterprise (dismissal of union officers, smear campaigns, etc.). In these circumstances, the Committee expresses the firm hope that the Constitutional Court will make its judgement in the near future and that its decision will take fully into account the requirements of Convention No. 87, ratified by Ecuador.
8. 256. Finally, with regard to the allegation about the raiding of trade union premises in PETROECUADOR enterprise, the Committee takes note that the Government confirms the raiding and occupation by private security forces of the trade union premises and states that the new authorities of the enterprise arranged the handover of the premises to the trade union organizations once the Minister of Energy and Mines of the former government ceased in his duties.