Solicitud directa (CEACR) - Adopción: 1989, Publicación: 76ª reunión CIT (1989)

Further to its previous comments, the Committee notes with interest the detailed information provided by the Government in its last report. It would be grateful for further information on the following points.

Part II, Articles 7 and 8, of the Convention. The Committee notes from the report that the Labour Code, as well as other legislative texts, prohibit any engagement or recruitment activity which is not duly authorised by the competent official. It hopes, however, that provision will be expressly made to require that a recruitment licence be obtained by the agent concerned, in accordance with these Articles of the Convention. Please indicate what progress has been made in this respect.

Article 11. Given that section 7(II) of the Migration Act mentioned in the report refers to cases of international migration, the Committee asks the Government to indicate the provisions, legislative or practical, which apply in the case of internal migration, and which - in all cases - provide for medical supervision during the journey.

Please communicate the text of the Migration Act cited above.

Articles 12 and 15. While noting the general provisions contained in section 41 of the Labour Code and the workers' safety and health regulations, the Committee hopes that the Government will take additional legislative and practical measures to ensure the full application of the provision of the Convention. Please indicate all progress made in this respect.

Part V, Article 36. See the direct request of 1987 concerning Convention No. 101, as follows:

In its previous comments, the Committee had drawn the Government's attention to the fact that the Convention does not provide for the possibility of deferring or accumulating leave and that in consequence section 73 of the Labour Code, which authorises the employer to refuse leave during one year in certain cases, and section 74, which permits the worker not to take his leave for three consecutive years so as to accumulate it in the fourth year, are not in conformity with the Convention.

In reply to these comments, the Government states that the Convention is silent on the question of whether the accumulation of leave is permitted or prohibited, and that the national legislation which provides for leave corresponding to each year of service assures the application of the principle of the Convention.

On this point, the Committee wishes to recall that according to Articles 1 and 3 of the Convention, agricultural workers must be granted an annual holiday of a specified minimum duration and that, according to Article 8, any agreement to relinquish the right to an annual holiday or to forego such a holiday must be void. The Committee expresses the hope therefore that the Government will amend the national legislation on the points mentioned above so as to bring it into conformity with the Convention.

Part VII, Article 47, paragraphs 3, 4 and 5, Article 48, paragraph 1, and Article 49. See the observation of 1987 concerning Convention No. 103, as follows:

1. (a) With reference to its previous observations, the Committee has noted from the information communicated by the Government to the Conference Committee in 1986 and in its last report that it is still its intention to amend sections 153 to 156 of the Labour Code so as to bring the national legislation into full conformity with the Convention, and that it has already undertaken tripartite consultations to this end. Since this question has been the subject of comments for many years and draft amendments of the above-mentioned sections of the Labour Code were already drawn up in 1980 on the occasion of the direct contacts carried out, in the framework of the countries of the Andean Group, between a representative of the Director-General of the ILO and the competent national services, the Committee can only once again express the hope that the amendments to the relevant provisions of the Labour Code will be adopted soon so as to ensure the application of the following provisions of the Convention: Article 3 (paragraphs 2 and 3): Under section 153 of the Labour Code the pre-natal maternity leave is two weeks and the post-natal leave is six weeks, a total of eight weeks, whereas according to the provisions of the Convention the duration of maternity leave must be at least 12 weeks of which six weeks must be taken after confinement; Article 3 (paragraph 4): the national legislation does not contain a provision according to which, in accordance with this provision of the Convention, the pre-natal leave must be extended until the actual date of confinement and the period of compulsory leave to be taken after confinement must not be reduced when confinement takes place after the presumed date; and Article 5 (paragraph 2): the national legislation does not contain a provision stipulating expressly that interruptions of work for the purpose of nursing are to be counted as working hours and remunerated accordingly, in accordance with this provision of the Convention.

(b) As regard Article 4 (paragraph 1) the Committee hopes that when the above-mentioned sections of the Labour Code are revised the period during which cash and medical benefits are provided will be extended so as to coincide with the period of the maternity leave and any additional leave due as a result of illness arising out of pregnancy or confinement or error in estimating the date of confinement, both for women workers covered by the compulsory social insurance scheme, including domestic workers, and for women workers covered by the peasants' social insurance scheme.

2. The Committee has noted the information communicated by the Government in its report concerning the coverage of women home workers. It has also noted with interest the adoption of Legislative Decree No. 21 of 1986 reforming the Compulsory Social Insurance Act and of the Act extending the peasants' social insurance. It requests the Government to continue to provide information on any further extension of the social insurance scheme so as to cover all the categories of women workers referred to in Article 1 of the Convention. The Committee also request the Government to provide, as far as possible, statistic on the number of women workers covered both by the compulsory insurance scheme and by the peasants' social insurance scheme throughout the country, and on their percentage in relation to the women workers of the country as a whole.

Article 47, paragraph 8. The Committee notes the information referred to by the Government in its report relating to Convention No. 103. The Committee observes that this information does not appear to contain any indication concerning the application of this paragraph of the Convention. The Committee recalls that, according to this paragraph - which does not appear in Convention No. 103 - no pregnant woman shall be required to undertake any type of work harmful to her in the period prior to her maternity leave. It requests the Government to indicate what measures have been taken or envisaged to ensure the application of this paragraph of the Convention.

Parts IX and X. See the observation made under Convention No. 87, as follows:

In its previous observations the Committee had commented on the following points:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Act on the civil service and administrative careers of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of the above-mentioned Act);

- the obligation to belong to the undertaking for election to the executive committee of a workers' association (section 445 of the Labour Code of 1978);

- the obligation to be Ecuadorian for membership of the executive committee of a works council (section 455 to the Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition of strikes by public employees (section 503, final subsection, of the Code) and public servants (section 10(g) of the Act on the civil service and administrative careers);

- the prohibition placed on unions from taking part in the activities of political or religious parties, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443(11) of the Code);

- the penalty of imprisonment laid down by Decree No. 105 for the instigators of collective work stoppages and form those who participate in them;

- the granting of exclusive rights to bargain collectively to "works councils" (sections 457 and 501 of the Code);

- protection against acts of anti-union discrimination at the time of recruitment.

The Committee also takes note of the report of the direct contacts mission that went to Ecuador in December 1985.

According to this report, the obligation to belong to the undertaking for membership of the executive committee of workers' associations does not raise any problem in practice, since trade union officers who lose their employment continue to exercise their functions until the end of their term of office, and all the trade union organisations have stated that they are in favour of keeping this provision in force.

With regard to the prohibition of strikes by certain categories of worker in the public sector, the mission was informed that the provision in question was amended in 1979 so as to provide for workers in public undertakings and institutions the possibility of calling a strike, subject to giving ten days' notice.

With regard to the granting of exclusive rights to bargain collectively to "works councils", the mission was informed both by the Government and by the trade union organisations that there was no legislative obstacle to collective bargaining for a branch of activity by the federations and confederations. Section 226 of the Labour Code provides for this possibility since it grants the right to bargain collectively to all workers' associations. It is simply the practice of labour relations in Ecuador that favours collective bargaining in the undertaking, during which, moreover, the federations and confederations may assist the first-level unions.

In view of this information obtained by the direct contacts mission, the Committee considers that the provisions in question do not call for further comment by it.

On the other points raised by the Committee, the mission and the Minister of Labour and Human Resources were able together to draw up proposals for the amendment of the legislation, that would be acceptable to the Government and make it possible to meet the comments made by the Committee concerning Conventions Nos. 87 and 98.

The Committee regrets to note that the Government does not refer in its report to the action it intends to take on these proposals. The Committee, therefore, requests the Government to take the necessary stops to give effect to the proposals to amend the legislation and to keep it informed of developments in the situation.

Part XI. The Committee asks the Government to send, with its next report, copies of periodic labour inspection reports concerning plantations.