Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 370, Octubre 2013

1. 364. The complaint is contained in a communication dated 26 January 2012, submitted jointly by the United Workers’ Front (FUT), the Ecuadorian Confederation of United Workers’ Organizations (CEDOCUT), the Confederation of Workers of Ecuador (CTE), the Ecuadorian Confederation of Free Trade Unions (CEOSL), the General Union of Workers of Ecuador (UGTE) and the Federation of Public Sector Workers (FEDESEP); in a communication dated 27 June 2012 from the Ecuadorian Medical Federation (FME), and in a communication dated 10 July 2012 from the Works Council for Workers of the Ecuador Inc. Electricity Supply Company.
2. 365. The Government sent its observations in communications dated 19 June 2012 and 11 March and 18 July 2013.
3. 366. Ecuador has ratified the Convention on 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. 367. In their communication dated 26 January 2012, the complainant organizations allege that the Government of Ecuador is attempting to weaken the trade unions through mass dismissals of public sector employees and workers. It is stated in the complaint that Executive Decree No. 813, issued on 12 July 2011, which brings about a reform of the rules under the Organic Law on the Civil Service (LOSEP), introduced a procedure known as the “compulsory purchase of redundancy”, enabling the Government to dismiss public sector employees simply by paying them compensation.
2. 368. Termination of employment through the compulsory purchase of redundancy is provided for in article 8 of the Executive Decree, which stipulates that “State institutions may draw up plans for the compulsory purchase of redundancy with compensation, on a properly budgeted basis, in accordance with article 47(k) of LOSEP, when undergoing a process of restructuring, optimization or rationalization.” … “Public employees have a duty to comply with processes of this nature that are set by the administration.” The complainant organizations argue that the Executive Decree runs counter to the LOSEP, adopted in 2010, which makes provision for the continuity of employment of public employees.
3. 369. The complainant organizations state that, on the basis of the compulsory redundancy purchase procedure, on 28 October 2011, the Government dismissed 2,700 public sector employees and workers, and in the three months that followed made a further 1,300 public sector workers redundant. These redundancies were brought about through administrative acts which do not specify the reason for the termination of employment, and without any prior procedure or provision for challenging them through the courts. The redundancies were accompanied by public statements made by the President of the Republic himself, and by other government spokespersons, making reference to the supposed incompetence and corruption of the workers and employees whose employment had been terminated.
4. 370. The complainant organizations allege that the compulsory purchase of redundancies has been used by the Government as a fig leaf for unfair dismissals and in order to get rid of trade union activists in a discriminatory manner, and especially those holding leadership positions in the trade unions. Given that the LOSEP does not recognize either the right to organize or collective bargaining rights, they argue that these dismissals are part of a government strategy to weaken the trade unions that began with the transfer to the LOSEP system of workers who were previously protected by the Labour Code, so that they would no longer enjoy the protection of collective agreements and the guarantees of the right to organize contained in the Code, the Government’s ultimate purpose being to create organizations tailored to its own interests.
5. 371. In support of its allegations, the complaint refers to the mass dismissal of leaders of the following trade unions and works councils: the works council of Guapán Industries, the executive committee of FETSAE, the executive committee (governing body) of the Single Health Union of Sucumbios, the executive committee of the Government of Loja, leaders of the National Federation of Public Works Employees, and the Works Council for Employees of the National Enterprise Bank. The complaint also gives the names of a series of trade union leaders said to have been dismissed through the purchase of compulsory redundancy: Gladys Illiescas of the trade union at the Hospital Teófilo Dávila de Machala, General Secretary of the Union of Nursing Auxiliaries at the Baca Ortiz Hospital; Martha Noboa, Nilo Neiger, Gloria León and Carmen Herrera of the works council of Guapán Industries; Paúl Sacoto, José Montesdeoca, Miguel León, Carlos García, Jorge Gualpa, Patricio Ortega, Patricio Merchan, Manuel Sacoto, Carlos Monzón, Carlos Villareal, Manuel Siguenza and 147 other workers in the works council at the National Enterprise Bank, and Monica Noboa, Luis Rosero, Héctor Paredes, Sibori Arreaga, Narcisa Peralta and Guilermo Parra. The following members of the Ecuadorian Federation of Nurses: Eda Correa Tinoco, President of the College of Nurses of Loja, and Yolanda Nuñez, Vice-President of the College of Nurses of Tungurahua. The following members of the Ecuadorian Medical Federation: Eduardo Zea, spokesperson of the Medical College of Pichincha, Nelson Vásconez, President of the Doctors’ Association at the Ministry of Public Health, Marco Robles, President of the Medical College of Zamora Chinchipe, Pedro Velasco, former President of the Association of Employees of the Ministry of Public Health. Members of the Ecuadorian Federation of Public Sector Workers: Héctor Dávila, Treasurer, Mónica Pugas, first Chief spokesperson, Emilio Chérrez, second Chief spokesperson, Braulio Bermúdez, trustee of the Association of Employees of the Customs Service, Carlos Baldeón, President of the Association of Municipal Employees of Pichincha, Jaime Coronel, National President of the Public Employees’ Association at the Ministry of Agriculture, Stockbreeding and Fisheries and a member of the National Confederation of Public Sector Workers of Ecuador, Eduardo Zea Edison Delgado Falconí, General Secretary of the Works Council for Workers of the Ecuador Inc. Electricity Supply Company, and Wilson Vergara Mosquera, President of the Association of Engineers at the same company.
6. 372. The complainant organizations also allege that the unilateral dismissals brought about through the compulsory purchase of redundancy violated the terms of collective agreements, and especially the provisions concerning continuity of employment and those on retirement pensions.
7. 373. The trade union organizations have instituted proceedings before the Constitutional Court claiming that Decree No. 813 is unconstitutional, and have also brought contentious proceedings in the administrative courts concerning the dismissals that have already taken place. In this regard, the Ecuadorian Medical Federation alleges that in the present situation in Ecuador, there are neither any guarantees nor any positive expectation that administrative, judicial or constitutional proceedings for violations of human rights and non-compliance with the international Conventions that protect them will be effective, be heard in a timely manner or result in a favourable outcome for the workers. The complainant organizations consider that, in addition to violating internal law, article 8 of Executive Decree No. 813 violates ILO Conventions Nos 87 and 98, which have been ratified by Ecuador, and they are seeking from the Committee abrogation of the Executive Decree and the elimination of the anti-union practices surrounding its application.

B. The Government’s reply

1. 374. In its reply of 19 June 2012, the Government of Ecuador denies that there is any intention to weaken the trade unions. It expresses its full support for the strengthening of the trade union movement in Ecuador and, by way of proof, points out that during the years 2010 and 2011 approval was given for the constitution and formation of approximately 100 trade bodies or trade unions, considerably more that the average of 20 trade unions which had customarily been set up each year. It adds that it has signed 17 agreements with trade unions, which again demonstrates its support for the trade union movement.
2. 375. As for collective bargaining, the Government recalls that, in accordance with Constituent Resolution No. 008, the Ministry of Labour and Employment at the time had undertaken, with the participation of employers and workers, to revise collective labour agreements by eliminating the excesses and privileges found in their provisions. Furthermore, through a process of social dialogue and in reliance on Decree No. 225 of 18 January 2010, the criteria governing collective bargaining in the public sector had been reformed, in full agreement with the trade unions.
3. 376. The Government states that this same Decree No. 225, sets the parameters for classifying both public sector employees covered by the LOSEP, and workers covered by the Labour Code. It denies that the transfer to the LOSEP system of workers formerly covered by the Labour Code was done for the purpose of facilitating their dismissal and weakening the trade union movement. It emphasizes that the classification was carried out for the purpose of tidying up the muddle that had come about in the state system relating to public officials, employees and workers.
4. 377. As for the dismissals caused by the compulsory purchase of redundancy, the Government explains that they are in conformity with the provisions of the LOSEP and are justified by the need to restructure state services to make them more efficient. It refers to various aspects of the LOSEP which are designed to make entry to public service careers more transparent, in line with the meritocratic principle. It explains that all the public sector employees affected by the compulsory purchase of redundancy have been fully compensated. It denies that there have been mass dismissals of workers from the public sector, in so far as the 4,624 workers terminated through compensated redundancy and the 4,063 public employees terminated on retirement account for only 1.32 per cent of the total of Ecuador’s public sector employees.
5. 378. Concerning the claims of unconstitutionality raised against Executive Decree No. 813, providing for the compulsory purchase of redundancy, the Government states that the Constitutional Court is the only competent forum to decide on the constitutionality of the Decree.
6. 379. In its communications of 11 March and 18 July 2013, the Government points out that the procedure for purchasing compulsory redundancy applies only to public sector employees covered by the LOSEP. Although article 23 of this law recognizes the right of association of public sector employees, this concept of association is distinct from the right to organize, by virtue of article 232 of the Constitution of Ecuador. It states that accordingly, it is not possible to use the compulsory purchase of redundancy to harm the trade union movement, given that public sector employees whose employment comes to an end through this procedure are not trade union members. There cannot therefore have been any violation of the right to organize of the public sector employees mentioned by name in the complaint because, being governed by the LOSEP and not by the Labour Code, they could not become trade union members.
7. 380. As for the dismissals of the trade union leaders mentioned in the complaint, who are not governed by the LOSEP but by the Labour Code, the Government points out that termination of an employment relationship may occur through unfair dismissal, a matter governed by the Labour Code. It states that the rules applying to unfair dismissal do not provide for any special privileges for trade union members or leaders, but that unfair dismissal is not being used to harm the trade union movement. In this connection, it mentions that the present Government has increased the number of approved trade union organizations by 300 per cent.

C. The Committee’s conclusions

1. 381. The Committee notes that this case deals with the termination of the contracts of public sector employees and workers, especially through the application of article 8 of Executive Decree No. 813, which introduced the procedure of compulsory purchase of redundancy. The complainant organizations allege that this Decree, enabling the Government to dismiss public sector workers arbitrarily, was used to dismiss a number of trade union activists and leaders in a discriminatory manner, and that these terminations violated the provisions of a number of collective agreements. It also notes that the complainant organizations contend that these dismissals were prepared and brought about through the transfer to the public service regime of workers previously covered by the Labour Code, so that they would cease to enjoy the guarantees provided by the Code concerning the right to organize and collective bargaining.
2. 382. The Committee takes note of the Government’s statements to the effect that the sole purpose of the terminations resulting from the application of Executive Decree No. 813 is to restructure state services in order to make them more efficient, and that the adoption of new parameters for classifying public sector employees, following a process of social dialogue, was solely intended to clear up a muddle at state level. The Committee also notes the Government’s statement that the compulsory purchase of redundancy cannot be used for anti-union purposes, since the public sector employees to whom this procedure applies enjoy freedom of association but not the right to organize, and as regards trade union leaders in the public sector who are covered by the Labour Code, although the rules governing unfair dismissal do not provide for any special protection for trade union members and leaders, this procedure is not being used against the trade union movement. Finally, the Committee notes the Government’s statements relating to the revision of collective agreements, which has taken place under Constituent Resolution No. 008 in order to eliminate certain excesses and privileges, and the reform of the criteria governing collective bargaining in the public sector, the content of which had been agreed with the trade unions.
3. 383. The Committee notes that article 8 of Executive Decree No. 813 empowers the public administration, through the payment of compensation, to terminate the employment of public sector employees unilaterally, without having to state the reasons for the termination. According to the figures supplied by the Government in its first reply, this procedure was used to terminate the contracts of 4,624 employees between 28 October 2011 and 19 June 2012. The Committee notes that legal claims of unconstitutionality, as well as contentious proceedings in the administrative courts, have been raised in connection with this Decree.
4. 384. The Committee points out that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions. In any case, the Committee can only regret that in the rationalization or staff reduction process, the Government did not consult or try to reach an agreement with the trade union organizations [see Digest of decisions and principles of the Committee on Freedom of Association, fifth (revised) edition, 2006, para. 1079]. Here the Committee notes that, in the context of this complaint, the complainant organizations are alleging that the restructuring that was carried out by applying Executive Decree No. 813 was used to dismiss, in a discriminatory manner, a significant number of trade union activists and leaders.
5. 385. Concerning the Government’s statement that the compulsory purchase of redundancy cannot be used for anti-trade union purposes, since the public sector employees to whom it applies enjoy freedom of association but not the right to organize, the Committee wishes to emphasize, first, that the rules contained in ILO Convention No. 87 apply to all workers “without distinction whatsoever” and therefore are applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests [see Digest, op. cit., para. 218]. In this respect, the Committee expects that enjoyment of all the rights upheld in Convention No. 87 will be fully secured for organizations of public servants. The Committee also recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions [see Digest, op. cit., para. 769]. Finally, the Committee has already had occasion repeatedly to state that where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should, in no instance, be motivated by the trade union functions or activities of the persons who could be affected by such measures [see Digest, op. cit., para. 792]. The Committee draws these legislative aspects to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
6. 386. In the light of the foregoing, the Committee calls the Government’s attention to the fact that the principle of adequate protection from acts of anti-union discrimination is fully applicable to workers in the public sector in general, and that it applies in practice to the compulsory purchase of redundancy and especially to unfair dismissal, whatever the name given to organizations that may be set up by public servants and workers under the national law in force. In this respect, the Committee notes with concern that the Government, although it was specifically asked about this matter, has not supplied any specific information about the numerous individual cases in which the complainant organizations allege that anti-union dismissals and terminations have taken place, or about the allegations that there are no guarantees against the possible discriminatory use of the compulsory purchase of redundancy.
7. 387. The Committee, emphasizing that the principle of adequate protection against acts of anti-union discrimination is fully applicable to public employees and workers, therefore requests the Government to carry out, without delay, an independent investigation into the alleged anti-union character of the various dismissals and terminations specified in the complaint and, if these allegations are substantiated, to take the necessary measures to rectify the anti-union discrimination and to re-employ the affected individuals. The Committee requests the Government to keep it informed of the measures taken in this respect, and of their outcome.
8. 388. As regards the allegations that clauses in collective agreements have been violated, the Committee takes note of the Government’s observations relating to the revision of clauses in collective agreements which allow for excesses and privileges. In this respect, the Committee wishes to recall its conclusions and recommendations in Case No. 2684, in which it emphasized that control of allegedly abusive clauses of collective agreements should not be up to the administrative authority (which in the public sector is both judge and party), but rather to the judicial authority, and then only in extremely serious cases [see 363rd Report, Case No. 2684, March 2012].
9. 389. Recalling that the Committee has repeatedly emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes for the employment and working conditions of employees [see Digest, op. cit., para. 1081], the Committee requests the Government to ensure that the trade unions and associations representing public employees are consulted on the implementation of Executive Decree No. 813 for the purpose, inter alia, of avoiding possible non-compliance with clauses in collective agreements and preventing any occurrence of anti-union discrimination. In this respect, the Committee requests the Government to ensure that such consultations provide, where necessary, for measures to be taken, including legislative and regulatory measures if needed, to introduce effective sanctions in the event of anti-union dismissals and terminations in the public sector.
10. 390. As regards the various judicial proceedings initiated against the adoption and implementation of Executive Decree No. 813, the Committee requests the Government to keep it informed of their outcome, and expects that the courts will pay due heed to the principle of protection against anti-union discrimination.