Informe provisional - Informe núm. 284, Noviembre 1992

1. 989. The complaints are contained in communications from the Confederation of Workers of Ecuador (CTE) dated 1 October 1991 and from the Ecuadorian Confederation of Free Trade Union Organisations (CEOSL) dated 27 February 1992. By a communication dated 21 July 1992 the Latin American Central of Workers (CLAT) associated itself with the CTE complaint. The Government sent its comments in communications dated 22 and 30 April 1992.
2. 990. 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 complainants' allegations

1. 991. In its communication of 27 February 1992 the CEOSL alleges that Act No. 133 promulgated on 21 November 1991 to amend the Labour Code, and Executive Decree No. 2260 promulgated on 13 March 1991, contain provisions that violate Conventions Nos. 87 and 98. Specifically, CEOSL objects to the following provisions of Act No. 133:
   • - Section 39(1), second paragraph, which stipulates that collective bargaining must take place at a specified territorial level (national, regional, provincial or section) and requires that an ad hoc negotiating trade union committee shall be established to be designated as the "single central committee";
   • - Section 39(3), which authorises the Ministry of Labour, through the inspector of labour, to prescribe the terms of the collective agreement between workers and employers, a provision which is utterly at variance with the jurisprudential concept of the collective labour agreement;
   • - Section 39(9), second paragraph, which provides that the Conciliation and Arbitration Court dealing with questions of collective bargaining is to be governed by regulations, decrees or administrative decisions concerning the determination of conditions of employment in the public sector;
   • - Sections 53, 54 and 55, which raise from 15 to 30 the minimum number of workers necessary for the purpose of forming a trade union association. In the CEOSL's opinion, this increase in the minimum number of workers makes it all but impossible to exercise the right to establish trade union organisations, since in Ecuador the number of workers in most of the existing enterprises does not exceed 30;
   • - Sections 65 and 68, which reduce the right to strike. Section 65 (solidarity strike) requires certain formalities to be satisfied, prescribes the time which must elapse between the declaration of a strike and the actual stoppage of work, and specifies a time-limit of three consecutive working days. By section 68 the time to elapse between the declaration and the commencement of the strike is increased (in institutions and enterprises performing services of social or public interest) from ten to 20 days, and this restriction is made applicable to large groups of workers in the private sector (enterprises distributing gas and other fuels, hotels, private banks, savings institutions, bodies providing credit for housing, financial institutions, cattle-raising, dairy-farming and other agricultural undertakings).
2. 992. The CEOSL adds that Executive Decree No. 2260 tends to subordinate collective bargaining in the public sector to the parameters laid down in the said Decree and that under section 1 the possibility of concluding collective agreements with persons or bodies in the public sector is left to the exclusive discretion of the National Secretariat of Administrative Development and to the discretion of the Office of the State Attorney General and of the Ministry of Finance. The CLAT associated itself with the complaint in so far as this allegation is concerned.
3. 993. In its communications dated 1 October 1991, the CTE criticised certain provisions of the draft amendments to the Labour Code which were later embodied in Act No. 133. Specifically, the CTE alleged that section 39 introduced a provision empowering the inspector of labour to "shelve" a set of claims if, in the inspector's opinion, they raised a subject or points dealt with in the collective agreement, and also to disallow the submission of a set of claims on these grounds; and that section 59 denied the universal procedural right for third parties to join an appeal or for appeal on points of fact. It furthermore took exception to the provisions concerning the minimum number of workers necessary for establishing a trade union and to the provisions concerning solidarity strikes (three-day time-limit and loss of the guarantee of security of tenure).

B. The Government's reply

1. 994. In its communication of 22 April 1992 the Government states that in early 1991 the Government announced its decision to proceed with the adoption of the measures necessary for adjusting conditions in Ecuador to the country's entry into the process of Andean subregional economic integration (the Andean Pact). In that context, the Government decided to appoint a number of commissions that were to make specific proposals for administrative and juridical reforms in the areas of labour questions, customs tariffs, foreign trade, farming, industrial and financial development, promotion of investments, etc. with a view to such integration. Representatives of the chambers of production and of the trade union organisations - including, naturally, the complainant Confederation of Workers of Ecuador - were invited to participate and to engage in a dialogue with the Government. The said Confederation was represented at meetings held in the office of the Under-Secretary for Labour on 1, 6 and 7 March 1991.
2. 995. The Government states that, as a result of the exchange of views and proposals submitted in respect of each of the several areas, on 28 May 1991 the Executive submitted to the Congress of the Republic for its consideration a set of draft amendments to the Labour Code which reflect the substance of the proposals. The Government explains that in the drafting of these amendments account was taken of the present need to modernise and bring up to date the Labour Code, which dates from 1938, in the light of today's socio-economic realities. Attention was also paid to the need to face the challenge of the economic integration which, as from 1 January 1992, brought into operation the customs union and, as from 1 July 1992, the Andean free trade area. The immediate object of the amendments is to facilitate and expedite the settlement of collective labour agreements and labour disputes, to stimulate investment and initiative by entrepreneurs in order to encourage the establishment of new enterprises and the expansion of existing ones thus diversifying commercial and industrial activity and generating new employment opportunities, to benefit the workers, to abolish obsolete and unfair rules and to rationalise the exercise of solidarity strikes and strikes in the public sector.
3. 996. The Government states that the Act to amend the Labour Code is the product of six months of intensive conversations and negotiations among the parties involved (workers, employers and Government), the deputies belonging to different political movements represented in the Congress, public opinion sectors, and members of Ecuador's society in general. The Government adds that the Act consists of 81 operative provisions and that many of them will mark important progress in the protection of the workers' interests, e.g. the improved guarantee of security of tenure, the establishment of a fairer scale of compensation for dismissal, the inclusion of two new bases for strike action, an increase in the length of maternity leave to 12 weeks, an increase in the fines to which employers are generally liable for non-compliance with rules that benefit the workers, etc. The Government states that the amendments are balanced and fair in that they rectify flawed procedures, facilitate and protect the right to submit petitions and grievances, and improve the personal protection of workers. In general terms, Act No. 133 ensures the opening up of fresh opportunities of employment and hence the creation of thousands of jobs for the country's unemployed.
4. 997. Referring to the sections of Act No. 133 which are said by the complainants to contravene Conventions Nos. 87 and 98, the Government states as follows:
5. 998. As regards section 39, this provision cannot be analysed objectively except in the context of the spirit of section 243 of the Labour Code which deals with the various stages of the revision of collective labour agreements; under section 243 the Director-General or Subdirector of Labour is empowered to settle any disagreement subsisting between the parties who are negotiating the revision of a collective agreement. In the case of section 39 of Act No. 133 the legislator considered it desirable that, by analogy with the Conciliation and Arbitration Court, a "tripartite tribunal" should be the body responsible for settling such disagreements. The section in question in fact provides for the addition of 13 clauses which lay down a regulated procedure for the negotiation and conclusion of collective agreements. For this purpose, various stages are prescribed, of which the first is direct bargaining between the parties. In the event of the total or partial failure of this stage, there begins the litigious procedure in the Conciliation and Arbitration Court which in turn comprises petition, counterclaim, hearing and ruling, the latter being enforceable. Furthermore, another clause of section 39 of Act No. 133 guarantees, for the first time and in express terms, security of tenure for permanent workers as from the time when these workers submit the draft collective agreement for discussion (prohibition of dismissal and of lay-off of workers for the duration of the procedures referred to in the chapter).
6. 999. As regards section 39(2) (under which a set of claims may not be submitted during the currency of the bargaining period or mandatory processing of the collective agreement), the Government states that the object of this provision is to eliminate an objectionable practice that involved a duplication of the process of negotiating the collective agreement at enterprise level, in that, while the terms of the proposed agreement were under discussion, the workers' organisations sometimes would submit another set of claims which involved the opening of another process of discussion and collective dispute that had to be dealt with and settled concurrently with the principal negotiations. In that respect, the sole purpose of the amendment is to streamline the negotiating procedure for the signature of the collective agreement at enterprise level, while safeguarding the workers' inviolable rights to negotiate and agree with the employer on the conditions of employment by means of collective agreement.
7. 1000. As regards clause 12 of section 39 which provides that if, during the currency of the collective agreement, one or more set of claims are submitted that raise issues or points dealt with in the current collective agreement, the authority responsible for labour questions is to "shelve" such claims, the Government states that the explicit purpose of this provision is to strengthen the binding and mandatory force of the agreements freely bargained and consented to between the workers' organisations and the workers' employer; the instruments signed as a consequence of the exercise of the rights to submit claims and to conduct voluntary negotiations, as provided for in Article 4 of Convention No. 98, constitute the law for the parties for so long as these instruments are in force. Naturally, the period of duration of the collective agreement is likewise a result of the agreement between the contracting parties. The Government explains that the statutory provision in question does not affect the workers' legitimate right to state a claim by reason of non-compliance of the employer with the terms of the agreement, in the exercise of the right to submit claims and by virtue of the provisions of sections 464 et seq. of the Labour Code.
8. 1001. As regards sections 53 and 55 of the Act, the Government states that the right to unionise is guaranteed by constitutional and statutory provisions and also by the ratification of Convention No. 87 on freedom of association. The Government adds that, owing to the dynamics of relations in the productive sector and to the constantly evolving nature of labour law, it became indispensable and urgent to adjust the rules in the labour law concerning the minimum number of workers necessary for the exercise of the right of association and unionisation, at a time when the country is moving ever faster in a subregional process of economic, customs and industrial integration. The Government points out that neither Convention No. 87 nor the Constitution of the Republic specify the number of workers necessary for establishing a workers' organisation. The amendment of the Labour Code introduced by Act No. 133 is far from impeding the right of unionisation - as the complainant organisations claim - and in fact, between the promulgation of the Act and 27 March 1992, 24 workers' organisations have been established.
9. 1002. As regards section 59 of the Act, the Government states that in Ecuador there is no "Code of Procedure for Labour Cases". Hence, when cases concerning collective labour disputes are dealt with by the conciliation and arbitration courts the provisions of the Code of Civil Procedure are applied mutatis mutandis. Upon being notified of the court's award, the parties have a two-day time-limit within which to apply for an explanation or further particulars. The court has a further two-day time-limit within which to rule on the application. Within a further two-day time-limit an appeal may be lodged with the Higher Conciliation and Arbitration Tribunal. Appeals must be supported by a statement giving the reasons upon which they are based. The appellant must specify the points in the award with which he does not agree, and his reasons, in case of appeal. If the appeal is for voiding the award, the omissions or infringements by reason of which the annulment is sought must be specifically mentioned. It is on the basis of the reasons stated for the appeal that the Higher Tribunal has jurisdiction. However, when an appeal for review and an appeal for voiding the award are lodged simultaneously, the Higher Tribunal will first adjudicate on the appeal for voiding the award. If this appeal is dismissed, it will then deal with the appeal for review. Section 475 of the Labour Code did not make provision for the "de facto" or "supporting" appeal; rather, in permitting the remedies of the civil procedure to be applied mutatis mutandis the conciliation and arbitration courts agreed to the lodging of such appeals, the collective labour dispute being settled in second and final instance. The practice in proceedings concerning labour questions had then shown that the "de facto" remedy was used by the parties, especially by the employers, to retard the settlement of the dispute as far as possible, to the detriment of the workers. The object of the amendment, which applies equally to workers and to employers in so far as they are parties to a litigation procedure, is to rectify defects in the application of the law, as mentioned earlier, which unduly delayed the settlement of collective labour disputes, and to ensure the efficacy and expeditious treatment of those remedies which are provided for in the Labour Code. Without any doubt, this change speeds up the proceedings and enables the parties to a collective labour dispute to use the procedural remedies provided for in the labour legislation, in the certain knowledge that these will be as effective as the defence of their interests demands.
10. 1003. As regards section 65 of the Act, the Government states that, before discussing this aspect of the amending legislation, one should look at the circumstances in which strikes take place. According to section 493 of the Labour Code, the right to strike, in order to be effective, implies the occupation of the workplace by the strikers. As a consequence of this guarantee, the strike, even if a solidarity strike, gives the right to those declaring it to occupy the premises of the enterprise for the duration of the actual action. Where operations are paralysed in this way, without any lawful reason other than that of solidarity, the legislator is amply justified in prescribing precisely the procedure and the time-limits which are to govern the occupation of the enterprise's plant on grounds of class solidarity. Ecuador's labour legislation protects and guarantees the workers' right to strike, both by provisions in the Constitution and by statute (article 31 of the Constitution and sections 463 to 511 of the Labour Code). The Government points out that the solidarity strike is a juridical institution provided for in the legislation of some countries, for the purpose of channelling the expressions of class solidarity in defence of the legitimate labour claims of workers involved in a dispute. Accordingly, such a strike has not per se any economic or social basis, but reflects only feelings of solidarity. Former section 498 of the Labour Code, now amended by section 64 of Act No. 133, recognised this right to the solidarity strike, but did not regulate its exercise; however, the practical operation of this guarantee highlighted the necessity of regulating the way in which the guarantee operates, so as not to frustrate its essential purpose of class solidarity, which is different from the dispute itself covered by the rules of the relevant paragraph in the Labour Code that deals with strikes. In this context, section 65 of Act No. 133 adds four provisions to section 498 which prescribe clearly and in detail the procedure to be followed for the exercise of this right; they specify, inter alia, that the solidarity strike may not last longer than three days, after the expiry of which maximum time-limit normal work must be resumed. The reason for this is that those striking in sympathy or solidarity are not in law connected with the main dispute with which they are showing their solidarity and hence are not procedurally parties to that dispute. The guarantee of security of tenure contained in section 496, which has not been amended, is provided for the benefit of the principal strikers, that is, the workers engaged in a collective dispute in the enterprise, on the termination of which they have a right to a special additional one-year's security of tenure. It should be emphasised that the altruistic motives of those striking in sympathy cannot be a reason for obtaining a special extraordinary security of tenure of the kind provided by the legislator for the benefit of those actually parties to the dispute at enterprise level, for in the course of that dispute the workers involved often risk their own financial stability and job security. It should be noted that the amendments introduced by section 65 of Act No. 133 do not deprive those striking in sympathy of whatever security they may have on other grounds.

C. The Committee's conclusions

1. 1004. The Committee notes that in this complaint the complainant organisations allege that certain provisions of Act No. 133 to amend the Labour Code, promulgated on 21 November 1991, and of Executive Decree No. 2260 of 13 March 1991, contravene Conventions Nos. 87 and 98. The Committee takes note of the Government's statements regarding the amendments to the Labour Code, specifically to the effect that the amendments took place in the framework of the process of subregional integration (the Andean Pact), their object being to promote investment and entrepreneurial initiative; that they do not conflict with Conventions Nos. 87 and 98; and that they offer many advantages as compared with the earlier situation (higher compensation for dismissal, additional bases for strike action, etc.). The Committee notes that, according to the Government, representatives of the chambers of production and trade union organisations - including one of the complainants, CTE - were invited to participate in the commission responsible for drafting the amendments.
2. 1005. The Committee notes that the complainants object to the following (among other) provisions of Act No. 133: section 39(3) (compulsory arbitration in the Conciliation and Arbitration Court if the parties have not been able to agree on the collective agreement as a whole); sections 55 and 56 (which raise from 15 to 30 the number of workers necessary for establishing a trade union or for forming a works council). The Committee takes note of the Government's comments on these points, and in particular:
   • - as regards compulsory arbitration in the Conciliation and Arbitration Court, it was considered desirable that the body settling disagreements between the parties negotiating a collective agreement should be a tripartite tribunal; and
   • - as regards the change in the number of workers necessary for the establishment of a trade union - the number being increased from 15 to 30 - that, in view of the dynamics of relations in the productive sector and of the labour law, it became indispensable and urgent to adjust the rules in the labour law concerning the number of workers necessary for this purpose, having regard to the fact that the country is engaged in a subregional process of economic, customs and industrial integration.
3. 1006. In this connection the Committee wishes to refer to the comments, reproduced below, made on these questions by the Committee of Experts on the Application of Conventions and Recommendations (see Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 79th Session, 1992, Report III (Part 4A), pp. 212, 213 and 268 of the English text):
   • "The Committee ... notes that the new Act introduces the following provisions which may raise problems with regard to the application of the Convention (No. 87);
     • - the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils. Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions;"
   • "The Committee also notes that the imposition of a compulsory arbitration procedure before the Conciliation and Arbitration Court, if the parties do not reach agreement on a draft collective agreement, raises problems in relation to the application of the Convention (No. 98)."
   • "The Committee once again urges the Government to take the necessary measures in the near future to bring the law and practice into full conformity with the Convention ... ."
   • The present Committee, like the Committee of Experts, emphasises that the imposition of compulsory arbitration is contrary to the principles of freedom of association and hopes that the Government will take the action requested by the Committee of Experts as soon as possible.
4. 1007. As regards section 39, penultimate clause (which empowers the labour inspector to shelve a set of claims) and section 59 (denying the right to submit appeals on points of fact and third party appeals), the Committee takes note of the following comments by the Government:
   • - section 39, penultimate clause, is applicable only during the period for which a collective agreement is in force, and its purpose is to strengthen the binding and mandatory force of the agreements freely discussed and consented to between the workers' organisations and the workers' employer for so long as the agreements are in force; and
   • - section 59 guarantees the possibility of lodging a judicial appeal in due form, subject only to the condition that the appeal must be supported by a statement of reasons.
     • The Committee puts the Government on notice against an abusive application of its powers of inspection to the detriment of the autonomy of worker and employer organisations.
   • 1008. As regards section 65 (procedures for calling solidarity strikes and loss of the guarantee of job security by persons joining such strikes), the Committee takes note of the following comments by the Government:
   • - in the exercising the right to strike (even in the case of a solidarity strike), strikers may occupy the premises of the workplace for as long as the action lasts, and where operations are paralysed in that way the legislator is justified in prescribing in detail the procedure and the time-limits applicable to the occupation of the plant; and
   • - the object of the guarantee of security of tenure under section 496 of the Labour Code is to benefit the principal strikers, that is, the workers involved in a collective dispute.
     • The Committee notes that the new statutory rule limits the right to strike in sympathy for a three-day period. The same rule provides that those participating in a solidarity strike will not enjoy the benefit of the guarantee of security of tenure under section 496 of the Labour Code. In these circumstances, while regretting that the legislation limits solidarity strikes to three days, a severe restriction on the rights of workers' organisations to formulate a programme of action, the Committee recalls that workers' organisations should be able to have recourse to those strikes which are in support of legal strikes. The Committee requests the Government to take the necessary measures to guarantee the job security of workers who participate in strikes of this nature. The Committee adds that the legislation in force does not recognise the right to strike of federations and confederations (it only recognises the works council's right to declare a strike under section 491 of the Labour Code) and that before the enactment of the amending Act No. 133 the trade union organisations were able lawfully to use the solidarity strike for carrying out strikes not only at enterprise level but also at higher (even provincial or nationwide) levels. In view of the implications, so far as strikes are concerned, of the amendments introduced by Act No. 133, the Committee requests the Government to take action with a view to the recognition, by law, of the federations' and confederations' right to strike.
   • 1009. Lastly, as regards section 68 of Act No. 133 (time-limit of the notice of the declaration of a strike in institutions and enterprises that perform services of "social or public" interest that exceed the notion of essential services in the strict sense of the term) and section 39(1), second paragraph (which provides that collective bargaining must be conducted at a specified territorial level, that at least 50 per cent of the workers must be represented and that an ad hoc negotiating committee - designated as the "single central committee" - must be established), the Committee notes that the Government's reply does not contain full comments. The Committee notes furthermore that the Government has not replied on the allegations concerning Executive Decree No. 2260. Accordingly, the Committee requests the Government to send full comments on these allegations.

Z. ANNEX

• Extracts of Act No. 133 amending the Labour Code which are criticised by the
• complainants:
• "Section 39. After section 230 of the Labour Code the following provisions are
• added:
• Clause 1. Submission of the draft collective agreement. The workers'
• associations qualified to do so by law shall submit the draft collective
• labour agreement to the competent inspector of labour, and the inspector shall
• direct that the employer or his representative be notified thereof within 48
• hours.
• In institutions, bodies and enterprises of the public sector or in those of
• the private sector that perform social or public functions in which there is
• no works council, the workers subject to the Labour Code shall establish a
• single central committee, of national, regional, provincial or sectional scope
• as the case may be, composed of more than 50 per cent of the workers
• concerned. In any case, the number of their representatives may not exceed 15
• principal and alternate representatives, and these shall produce evidence of
• their capacity to represent the will of the said majority through the
• submission of the document in which shall appear the full names of the
• workers, their signatures or fingerprints, the number of their identity card
• or citizenship document, and particulars of the workplace.
• Clause 2. Negotiation of the collective agreement. Upon the expiry of 15 days
• from the said notification, the parties shall commence bargaining, which shall
• be concluded within a period not exceeding 30 days, unless by mutual agreement
• the parties inform the inspector that they need an additional specified period
• for concluding the bargaining.
• Clause 3. Compulsory proceedings in the Conciliation and Arbitration Court. If
• on the expiry of the periods referred to in the preceding provision the
• parties have been unable to reach agreement on the agreement as a whole, it is
• mandatory that the matter be referred to a Conciliation and Arbitration Court
• for settlement, the Court being constituted in the manner indicated in section
  468. 468 of this Code.
• The Court will adjudicate exclusively on the issues in disagreement.
• Clause 4. Content of the claim. The claim shall set out the following
• particulars:
  1. (1) designation of the authority to which the claim is submitted;
  2. (2) the names of the claimants, who shall produce evidence of their capacity
• in the form of the appropriate credentials;
  3. (3) the name and description of the respondent, with particulars of the place
• where notice is to be served;
  4. (4) the grounds, in fact and in law, of the claim, with precise particulars of
• the issues, provisions or clauses in the agreement under negotiation and of
• those on which there was agreement and of those on which agreement has not
• been reached;
  5. (5) the designation and acceptance of the principal and alternate
• representatives who will be members of the Conciliation and Arbitration Court;
• and
  6. (6) the legal address where notices may be served on the parties entering an
• appearance and on the designated representatives.
• The evidence at their disposal shall be transmitted with the statement of
• claims.
• Clause 5. Time-limit for the reply. Upon receipt of the claim, the Director or
• Subdirector of Labour concerned shall, within 24 hours thereafter, direct that
• the respondent be notified, the latter being allowed three days within which
• to reply.
• Clause 6. Reply to the claim. The reply to the claim shall contain the
• following particulars:
  1. (1) designation of the authority before which an appearance is entered;
  2. (2) an express statement on the claims of the claimant, with a specific
• indication of what is accepted or rejected;
  3. (3) all the defences relied upon in resisting the claims of the claimant;
  4. (4) designation and acceptance of the principal and alternate representatives
• who are members of the Conciliation and Arbitration Court;
  5. (5) the legal address where notices may be served on the party entering an
• appearance and on the designated representatives.
• With the written statement of the reply there shall be sent the evidence at
• the respondent's disposal and the documents attesting to his representative
• capacity, where applicable.
• Clause 7. Entirely favourable reply. If the reply is entirely favourable to
• the claims and proposals, the chairman of the Conciliation and Arbitration
• Court shall summon the parties to sign the collective labour agreement in
• question.
• Clause 8. Conciliation hearing. If on the expiry of the time-limit for the
• submission of a reply no reply has been given or the reply was adverse or
• partly favourable to the claimants' appreciation, the chairman of the
• Conciliation and Arbitration Court shall summon the parties and the
• representatives to the conciliation hearing, fixed for a specified date and
• hour, such hearing to take place within 48 hours.
• The provisions of sections 470, 471 and 472 of this Code shall apply to the
• conciliation hearing.
• Clause 9. Time-limit for inquiries and settlement. If there is no
• conciliation, the Conciliation and Arbitration Court shall fix a time-limit of
• six days for inquiries, within which period the parties shall submit their
• proposals concerning the issues in disagreement together with written
• statements of their reasons. On the expiry of this time-limit the Court shall
• settle the subject-matter of the dispute within a time-limit of three days.
• Where institutions of the public sector are concerned, the settlement shall
• respect the provisions of the relevant legislative enactments, decrees and
• regulations.
• The settlement is enforceable; however, within two days application may be
• made for an explanation or for further particulars, and the Court will have a
• further two days within which to rule on such application.
• Clause 10. Effects of the collective agreement. The fully affirmative reply of
• the respondent, the agreement of the parties reached in the course of the
• conciliation hearing and the award of the Conciliation and Arbitration Court
• shall have the same binding effect as the collective labour agreement.
• Clause 11. Prohibition of dismissal and lay-off of workers. After the draft
• collective agreement has been submitted to the inspector of labour, the
• employer may not dismiss or lay off any of his stable or permanent workers
• throughout the duration of the procedure described in this chapter. If the
• employer should do so, he shall indemnify the workers affected with a sum
• equivalent to 12 months' pay, without prejudice to whatever other compensation
• is provided for in this Code or in some other instrument.
• During the currency of the bargaining period or the compulsory procedure
• concerning the collective agreement no set of claims may be submitted in
• relation to pending issues that are the subject of the negotiation or of the
• procedure.
• Clause 12. ... If during the currency of the collective agreement one or more
• sets of claims are submitted that relate to subjects or aspects covered by the
• current collective agreement, the labour authority shall immediately order
• such sets of claims to be shelved.
• Clause 13. Declaration of strike. The workers parties to the procedure
• described in the present chapter may declare a strike on the grounds referred
• to in section 490, in so far as they are analogous thereto."
• "Section 53. In the first paragraph of section 439 the figure '15' is replaced
• by the figure '30'."
• "Section 54. Section 448 will read:
• Section 448. Prohibition of lay-off and dismissal. Except in the cases to
• which reference is made in section 171, the employer may not lay off any of
• his workers from the moment at which the workers notify the competent labour
• inspector that they have met in general meeting to establish a trade union,
• works council or any other workers' association, until the first executive
• committee has been composed. This prohibition protects all workers, whether
• they participated or did not participate in the constituent meeting.
• If there should be a dismissal or lay-off, the procedure for registering or
• approving the workers' organisation shall not be interrupted.
• For the purpose of establishing a works council, the meeting must comprise
• more than 50 per cent of the workers, but in no case may it consist of fewer
• than 30 workers.
• General meetings for establishing other workers' associations are not bound by
  5. the 50 per cent requirement referred to in the preceding provision."
• Section 55. In the first paragraph of section 455 the figure '15' is replaced
• by the figure '30'."
• Section 59. The text of section 475 is replaced by the following text:
• Section 475. Application for review or for voiding of the award. Upon being
• notified of the award, the parties may, within a time-limit of two days, apply
• for an explanation or for further particulars. The Tribunal will have a
• further two days within which to rule on the application.
• Within a time-limit of two days an appeal may be lodged with the Higher
• Conciliation and Arbitration Tribunal for the voiding of the award.
• If the appeal has been submitted in due form it may not be disallowed for any
• reason whatsoever.
• There shall be no appeal on points of fact, nor may a party join in an appeal
• brought by the adverse party."
• "Section 65. After section 498, the following provisions are added:
• Clause 1. Procedure for the solidarity strike. The declaration of a solidarity
• strike in support of other lawful strikes shall be made in conformity with the
• provisions of section 491. The inspector of labour in the jurisdictional area
• concerned shall be notified of the decision to strike, and within 24 hours
• thereafter the inspector shall inform the employer accordingly. In addition,
• the inspector shall bring the declaration to the attention of the labour
• authority dealing with the principal issue.
• The stoppage of work in consequence of the solidarity strike may not take
• place before three days have elapsed after the labour authority was notified
• of the strike declaration.
• The solidarity strike may not last for longer than three consecutive working
• days.
• At the end of the solidarity strike the workers must resume work; if they fail
• to do so the employer may, on that ground, apply for approval of termination
• of the employment relationship.
• The labour authority which had notice of the decision to declare a solidarity
• strike will be the authority competent to deal with matters connected with the
• strike.
• Neither the persons participating in the solidarity strike nor their employer
• may submit any claims or appeals concerning matters that are the subject of
• the principal dispute.
• Clause 2. Unlawful solidarity strike. A solidarity strike shall be deemed
• unlawful in the cases referred to in section 502(2).
• Clause 3. Declaration of a solidarity strike. In institutions of the public
• sector and in enterprises performing public services, as referred to in
• section 503 of this Code, the declaration of a solidarity strike must comply
• with the provisions of this chapter and with section 503 of this Code.
• Clause 4. Exception to the guarantee of security of tenure. Persons
• participating in a solidarity strike do not qualify for the benefit of the
• guarantee of security of tenure provided by section 496 of this Code."
• "Section 68. Section 503 shall read:
• Section 503. Declaration of a strike in institutions and enterprises
• performing services of importance to the community or to the general public.
• In the enterprises and institutions of the public sector, specified in section
  383. 383 of the Organic Act concerning financial administration and supervision,
• Central Bank of Ecuador and National Development Bank, work may not be
• suspended before the expiry of 20 days after the strike was declared.
• A like interval must elapse between the strike declaration and the suspension
• of work in electricity supply undertakings, in drinking water supply
• undertakings, hotels, private banks, savings institutions, institutions
• providing credit for housing, financial agencies, transport undertakings, food
• supply undertakings, hospitals, clinics, nursing homes and, in general,
• institutions providing health care and public welfare services, livestock
• farming and other agricultural undertakings carrying on activities which, by
• their nature, demand constant attention.
  2. The 20-day time-limit begins to run as from the date on which the employer was
• notified of the declaration to strike."