Report in which the committee requests to be kept informed of development - Report No 355, November 2009

1. 722. The complaint is contained in a communication from the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL) dated 16 March 2009. The Government sent its observations in communications dated 28 April and 26 May 2009.
2. 723. 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. 724. In its communication dated 16 March 2009, the CEOSL claims that, at the third plenary sitting of its 16th Ordinary National Congress, which was held on 30 and 31 July 2007 in the stadium of the Eloy Alfaro secular university and at the premises of the Naval Dockers’ Union in the city of Manta, in the province of Manabí, and attended by 334 delegates from the different organizations affiliated to the Confederation, the officers of its national executive committee, including Mr Jaime Arciniega Aguirre (President) and Mr Guillermo Touma González (Secretary-General), were elected.
2. 725. The CEOSL explains that, at 8.45 a.m. on 30 July 2007, at the preparatory session of the abovementioned Congress, Mr José Chávez and other infiltrators burst violently into the stadium of the Eloy Alfaro secular university and demanded that Mr Jaime Arciniega Aguirre should open the meeting before it was scheduled to begin and should not require the participants to provide credentials, and when Mr Jaime Arciniega Aguirre refused to allow these unlawful acts, they caused an outbreak of violence leading to attacks with firearms and knives. This is why, at the request of the participants, the Congress was moved to the auditorium of the Naval Dockers’ Union of the port of Manta, where, once the statutory quorum had been reached, it was possible to proceed with the Congress and the election of the national executive committee of the CEOSL. The formal opening session was attended by Ms Nancy Bravo de Ramsey, Undersecretary of the Ministry of Labour and Employment, on behalf of the Minister, and Mr Barón Hidrovo, Governor of the province of Manabí; the Confederation of Workers of Ecuador (CTE) was represented by union official Mr Mariano Baque and the Ecuadorean Confederation of Unitary Class Organizations of Workers (CUT-CEDOC) was represented by union official Ms Fanny Poso; the international workers’ organizations that are accredited in the country were also represented.
3. 726. Mr Jaime Arciniega Aguirre filed an application with the Minister of Labour and Employment to register the national executive committee of the CEOSL, as elected, by official letter No. 686-UGL-07 dated 14 November 2007. The Regional Labour Director rejected the application, pointing out that there was a dispute over representation and noting that the CEOSL “should resolve its differences through its statutory bodies or by the decisions it deems appropriate”, given that another, unlawful, application to register the committee had been filed by Mr Eduardo Valdez Cuñas.
4. 727. According to the complainant organization, this was a breach of legislation, as the Regional Labour Director, by the power vested in him by law, should have assessed the documentation relating to the officers of both national executive committees and proceeded to register those which had been lawfully elected; however, he failed to fulfil his duty to resolve the matter as required by law and he therefore violated the right to organize, by allowing the CEOSL to remain leaderless.
5. 728. In the light of this refusal to register the new officers of the executive committee of the CEOSL presided over by Mr Jaime Arciniega Aguirre, an extraordinary meeting of the national executive committee of the CEOSL was held on 8 December 2007 at the premises of the works council of the San Carlos sugar refinery in the canton of Marcelino Maridueña, in the province of Guayas, to resolve the dispute within the CEOSL and to start implementing the decision of the Regional Labour Directorate. The meeting decided:
   • – to accept the report of the CEOSL disciplinary board and, in accordance with the rules, dismiss and expel from the national executive committee Mr José Antonio Chávez, Mr José Eduardo Valdez Cuñas, Mr Rubén Darío Segarra Ruiz, Mr Luis Quishpe and Ms Rosa Angélica Argudo Coronel (who were responsible for the violence at the 16th Ordinary National Congress);
   • – unanimously to extend the term of the restructured national executive committee (following the expulsion of several of its members), until it was possible to convene an ordinary national congress to settle the question of the representation of the CEOSL; and
   • – to fill the vacant seats of the national executive committee members who were dismissed and expelled.
6. 729. It should be noted that, according to the statutes of the CEOSL, the extraordinary meeting of the national executive committee, which is the highest authority in the period between two national congresses, has the power to dismiss members of the national executive committee and to fill the vacancies that arise.
7. 730. The complainant organization states that, in an application filed on 28 December 2007 (No. 013582), Mr Jaime Arciniega Aguirre requested the Regional Labour Director to register the list of members of the restructured executive committee of the CEOSL and that the terms of office of these members were extended by the extraordinary session of the national executive committee for registration purposes, in accordance with the decision of the Regional Labour Directorate. However, the Regional Labour Director did not respond to the application within the 15-day period established by the State Modernization Act. Therefore, Mr Jaime Arciniega Aguirre filed another application on 28 January 2008, in which he requested the Regional Labour Director, in accordance with section 28 of the State Modernization Act, to provide a certificate indicating that the deadline for settling the application filed on 28 December 2007 had passed, to prove that his application had been settled in his favour as a result of the administrative silence, as the period of time within which the public authority had to resolve his application expired on 22 January 2008.
8. 731. On 29 January 2008, the Regional Labour Director, by official letter No. 117-DRTQ-2008, issued a decision according to which “no steps would be taken to register the executive committee of the organization in question until it resolved its internal problems, as had already been established in November 2007, to be applicable to future communications”. Thus, the Regional Labour Director unlawfully interfered, creating instability and turmoil in the largest trade union organization in Ecuador by depriving it of its legitimate right to legal representation and to organize; in other words, for several months, a trade union organization was allowed to remain leaderless.
9. 732. In the light of the refusal to issue the certificate mentioned in the State Modernization Act, Mr Jaime Arciniega Aguirre initiated amparo proceedings against the Minister of Labour and Employment for the unlawful failure to issue the certificate which would make it possible to register the executive committee of the CEOSL. The case was brought before the first chamber of the Administrative Disputes Court and, after due process, a unanimous decision was reached at 8.48 a.m. on 1 July 2008 by the judges of that chamber “... to accept in part the amparo proceedings and to instruct the Minister of Labour and Employment to order the registration of the officers of the executive committee which has fulfilled the constitutional and legal requirements”. It should be noted that Mr Eduardo Valdez Cuñas appeared in the abovementioned amparo proceedings as a third party, with the same documentation and allegations that he presented at the public hearing, in order to prove that he was the acting president of the CEOSL; however, his arguments lacked any legal basis.
10. 733. The Minister of Labour and Employment gave immediate effect to the decision and ordered the Regional Labour Directorate of Quito to proceed with the registration of the executive committee of the CEOSL presided over by Mr Jaime Arciniega Aguirre. This registration is recorded in official letter No. 178-UR-2008 of 8 July 2008 (a copy of which is provided).
11. 734. However, without any legal justification and without explanation, the Regional Director of Labour and Employment Mediation of Quito informed Mr Eduardo Valdez Cuñas in official letter No. 1226-UR-2008 of 2 September 2008 that “pursuant to the arrangements made by the Minister of Labour and Employment and in compliance with the decision issued at 2.49 p.m. on 22 August 2008 by the deputy 13th judge of the Pichincha Civil Court, it would proceed to register the executive committee of the CEOSL comprising Mr Eduardo Valdez Cuñas ... ”; it was also indicated that “the registration of the executive committee led by Mr Jaime Arciniega Aguirre as recorded in official letter No. 178-UR-2008 of 8 July 2008 remained without effect”.
12. 735. In order to render official letter No. 178-UR-2008 of 8 July 2008 invalid, steps should have been taken to initiate the procedure established by law to counter actions that are considered to be prejudicial (lesividad procedure), thereby enabling the party concerned, Mr Jaime Arciniega Aguirre, to exercise his legitimate right to defence, which was denied to him. There was also a violation of article 24, point 13, of the Political Constitution of Ecuador (article 76(1) of the current Constitution), because the administrative act contained no legal motivation, in other words, it did not set out the legal principles which applied to the facts that gave form and substance to the act, with regard to the registration of the executive committee of Mr Eduardo Valdez Cuñas.
13. 736. The decision by the Ministry of Labour and Employment to register a new CEOSL executive committee was purely political, and to date the legal and moral reasons for which the Minister ordered the registration of the illegal committee on the basis of and following an illegal decision handed down by the deputy 13th judge of the Pichincha Civil Court on 22 August 2008 at 2.49 p.m. remain unknown (however, at the hearing in the Administrative Disputes Court, the representative of the Minister of Labour and the representative of the Attorney-General argued that the amparo proceedings initiated by Mr Eduardo Valdez Cuñas were illegal as they violated section 57 of the Constitutional Control Act, on the grounds that Mr Cuñas had been involved as a third party in the amparo proceedings initiated by Mr Jaime Arciniega Aguirre). The amparo proceedings initiated by Mr Eduardo Valdez Cuñas before the deputy 13th judge were unfair and unlawful, as he was aware of the decision of the First Chamber of the Administrative Disputes Court when he filed new amparo proceedings on 4 July 2008, on the same issue and with the same objective.
14. 737. The most surprising thing of all, continues the complainant organization, is that the deputy 13th judge of the Pichincha Civil Court in the abovementioned decision takes the liberty of discrediting the decision of the judges of the First Chamber of the Quito District Administrative Disputes Court and ensuring that it is unenforceable. In this regard, the complainant organization indicates that neither the law nor any legal standard confers upon the judge in question the power to declare a decision unenforceable; the Constitutional Tribunal (now the Constitutional Court) can uphold or overturn a decision rendered during amparo proceedings through an appeal, but a deputy judge cannot.

B. The Government’s reply

1. 738. In its communication of 28 April 2009, the Government makes reference to the two applications to register two rival executive committees of the CEOSL, one of which was filed by Mr Eduardo Valdez Cuñas and the other by Mr Jaime Arciniega Aguirre, in official letters Nos 685-UGL-07 and 686-UGL-07 of 14 November 2007 to the Regional Labour Director of Quito, noting that the Regional Director in question had not processed either of the applications and had refused to register either of the rival committees until the CEOSL, through its statutory bodies or by decisions that it deemed appropriate, resolved its differences. In fact, it was public knowledge that a number of difficulties had arisen within this trade union organization in connection with its representation, which is why the Ministry of Labour and Employment, bearing in mind the mandates provided for in international conventions and other constitutional and legal standards, invoked the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which has been ratified by Ecuador.
2. 739. The Government adds that, when his registration application was rejected, Mr Jaime Arciniega Aguirre filed an application for amparo with the First Chamber of the Quito District Administrative Disputes Court No. 1 against the abovementioned administrative act, which, by a decision made at 8.48 a.m. on 1 July 2008, under Case No. 17029-LE-2008, granted amparo and instructed the Minister of Labour and Employment to order the registration of the officers of the executive committee presided over by Mr Jaime Arciniega Aguirre; the Ministry of Labour lodged an appeal against this decision (a copy of which is attached).
3. 740. Furthermore, Mr Eduardo Valdez Cuñas also initiated amparo proceedings and a decision was rendered at 2.49 p.m. on 22 August 2008 by the deputy 13th judge of the Pichincha Civil Court, under Case No. 715-2008-LJ, who accepted the application for amparo and likewise instructed the Minister of Labour and Employment to register Mr Eduardo Valdez Cuñas as president of the CEOSL and his entire executive committee; the Ministry also appealed against this decision (a copy of which is attached).
4. 741. The Government notes that sections 442 and 443, first paragraph, of the Labour Code set out the legal requirements for the registration of executive committees, assigning this role to the Regional Labour Directorate, through the Legal Management Unit. In this regard, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Ecuador and published in Official Gazette No. 119 of 30 April 1957, provides in Article 3 that:
5. (1) Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes.
6. (2) The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.
7. 742. Therefore, the Regional Labour Directorate of Quito has complied with the provisions of this international Convention, as it is prohibited to interfere in the internal affairs of a trade union organization; in other words, it has not violated the rights as mentioned by the complainant – on the contrary, there is evidence of faithful compliance with Convention No. 87.
8. 743. The complaint by Mr Jaime Arciniega Aguirre must ultimately be settled by the highest authority within the CEOSL, in compliance with and adhering to its own rules, under Articles 2 and 3 of Convention No. 87.
9. 744. The Government states that the Ministry of Labour and Employment appealed against the two sets of amparo proceedings initiated by Mr Jaime Arciniega Aguirre and by Mr Eduardo Valdez Cuñas, who had competing claims with regard to the executive committee of the CEOSL. These appeals were brought before the Third Chamber of the Constitutional Court, which ultimately had to uphold or overturn the decisions of the courts of first instance with regard to the two applications for amparo; therefore, in a letter dated 13 October 2008 (under the provisions of section 55 of the Rules of Procedure governing cases before the then Constitutional Tribunal), a request was made to consolidate the two sets of proceedings, as the appellants had both filed amparo proceedings against the Ministry of Labour and Employment for the same purpose, in other words for the purpose of registering the executive committee of the CEOSL which they presided over, and it was necessary for the Constitutional Court to decide what was applicable by law. The Government attaches a copy of the applications and the decisions rendered by the competent courts, as well as the arrangements made by this Ministerial Office.
10. 745. In its communication of 26 May 2009, the Government states that the Constitutional Court (the highest court) issued Decision No. 1148-2008-RA on the dispute between the two executive committees of the CEOSL, which is attached hereto.
11. 746. In that decision, noting the internal dispute within the CEOSL, the Constitutional Court ordered that elections should be called and held within 90 days to appoint the new executive committee of the CEOSL in accordance with the constitutional rules and the statutory provisions of that trade union confederation. It also called for the participation of officials from the Ministry of Labour to act as observers and the assistance of the National Electoral Board.

C. The Committee’s conclusions

1. 747. The Committee notes that, in the present complaint, the complainant organization, whose Secretary-General is Mr Jaime Arciniega Aguirre, alleges that the Ministry of Labour, in violation of legal and constitutional standards, refused to register the national executive committee of the CEOSL which was elected on 30 and 31 July 2007 and the list of members of the executive committee which had been restructured by the extraordinary meeting of the national executive committee on 8 December 2007; furthermore, in June 2008, the Ministry of Labour registered the executive committee of Mr Jaime Arciniega Aguirre but in September 2008 it registered the other executive committee, undermining the decision rendered by the First Chamber of the Administrative Disputes Court on 1 July 2008 ordering the registration of the executive committee headed by Mr Jaime Arciniega Aguirre.
2. 748. The Committee takes note of the statements by the Government in which it indicates that, because of an internal dispute within the CEOSL, the registration of the two rival executive committees was refused until the trade union organization settled its differences through its statutory bodies or by decisions that it deemed appropriate, in view of the fact that Article 3 of Convention No. 87 provides that the authorities should refrain from any interference which would restrict the right to elect officials in full freedom or impede the lawful exercise thereof. The Government adds that it appealed against the decisions of the court that ordered the registration of the executive committee headed by Mr Jaime Arciniega Aguirre, as well as against the court order to register the executive committee headed by Mr Eduardo Valdez Cuñas. The Committee observes, however, that according to the documentation provided by the complainant organization, the Ministry of Labour registered the executive committee of Mr Jaime Arciniega Aguirre first and then subsequently registered the rival executive committee. Lastly, the Committee notes that, according to the Government, after having considered the applications for amparo (for violation of constitutional rights), on 6 May 2009 the Constitutional Court issued an order to call and hold new elections within a maximum period of 90 days to appoint the new executive committee of the CEOSL; it also ordered the presence of two officials from the Ministry of Labour to act as observers and the assistance of the National Electoral Board.
3. 749. The Committee recalls that it is not competent to make recommendations on internal dissentions within a trade union organization, so long as the government does not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. The Committee also recalls that, when internal disputes arise in a trade union organization, they should be resolved by the persons concerned (for example, by a vote), by appointing an independent mediator with the agreement of the parties concerned, or by intervention of the judicial authorities [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1114 and 1122]. In this regard, the Committee notes that the internal dispute in the CEOSL has been brought before a judicial authority and that this authority has indicated the steps to be taken to resolve it, namely the holding of elections in the near future. The Committee requests the Government to keep it informed of the outcome of those union elections and expects to receive this information as soon as possible. The Committee regrets to note that these elections will be conducted almost two years after the internal conflict occurred and the damage that this has caused to the trade union organization and its members.