Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 371, Marzo 2014

1. 295. The complaint is contained in a communication dated 29 November 2011 from the General Union of Workers of Ecuador (UGTE).
2. 296. The Government sent its observations in a communication dated 5 August 2013.
3. 297. 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. 298. In its communication of 29 November 2011, the complainant organization alleges that the Ministry of Industrial Relations, which is the body responsible for conducting and coordinating State labour policy, has repeatedly denied the right of workers and their organizations to file collective claims by assuming powers and functions that pertain exclusively to conciliation and arbitration courts. In this regard, the complainant organization states that labour inspectors, who are public servants appointed by the Ministry in question, dismissed, on five separate occasions, five different lists of demands submitted by the workers of Sacos Durán Reysac SA for alleged non-compliance with civil procedure requirements, the confirmation of which should be the exclusive responsibility of conciliation and arbitration courts, when, in accordance with the provisions of the Labour Code, they should have ordered the establishment of a conciliation and arbitration court to resolve the collective disputes in question. The workers affected filed criminal complaints against the labour inspectors who had dismissed the lists of demands.
2. 299. The complainant organization adds that, following the refusal to process the lists of demands, the Regional Director for Labour of the Litoral region declared the strike launched by the workers of the abovementioned company unlawful, despite it being the exclusive responsibility of the conciliation and arbitration courts to determine the lawfulness of the strike. Lastly, the organization adds that the above general labour directorate unlawfully approved the dismissal of 73 workers from the abovementioned company, which amounted to almost 50 per cent of the workforce, for having participated in the strike movement.
3. 300. The complainant organization also alleges that workers from another two companies, Maxigraf SA and Acromax chemical and pharmaceutical laboratory, have been waiting for more than a year for the appointed labour inspectors to order the establishment of the conciliation and arbitration courts following the submission of their lists of demands.
4. 301. Lastly, the complainant organization adds that judicial remedies have not solved the problems caused by the Ministry’s attitude because of the control exercised by the executive over the judiciary by impeding the initiated proceedings on the grounds of alleged procedural irregularities that should not occur in the domain of labour rights.

B. The Government’s reply

1. 302. In its reply dated 5 August 2013, the Government indicates that the different lists of demands submitted by the special works council of Sacos Durán Reysac SA were repeatedly dismissed by the labour inspectors because they did not comply with the legal provisions according to which the assembly, when establishing a works council, should be composed of more than 50 per cent of the workers and of no fewer than 30 workers, for which reason the Ministry of Industrial Relations was unable to proceed with the notification of the request in question.
2. 303. As to the strike held by the workers of the abovementioned company, the Government states that it merely ordered an inspection to confirm the work stoppage. The inspectors noted that the main entrance of the company was closed and barred and that the workers were granting or denying access to the premises. The workers informed the inspectors that they had been on strike since 16 October 2011 and that their lawyer would shortly provide them with an official strike notice. The Government also indicates that, according to the company’s security guards, in the early hours of the morning, a group of hooded individuals armed with sticks who did not belong to the company entered the premises, which led the inspectors to conclude that the work stoppage did not comply with the provisions of sections 467 and 497 of the Labour Code. The labour inspectorate’s decision to approve the dismissal of 73 workers of the company, taken in accordance with sections 172 and 183 of the Labour Code, was due to the hostile takeover of the company’s premises, it being confirmed that the individuals who claimed to act on behalf of the company’s workers were not in fact their representatives and moreover forcibly took over the company’s premises in a manner that was both unlawful and arbitrary.
3. 304. Lastly, the Government adds that the Ministry of Industrial Relations guarantees the right of workers to freedom of association and to form labour organizations, which, in the abovementioned case, has allowed the workers to associate into the Reysac SA workers’ union having ensured that the individuals representing them were their duly authorized representatives.
4. 305. As to the allegations concerning Maxigraf SA and Acromax chemical and pharmaceutical laboratory, the Government indicates that, in both cases, the lists of demands were processed in timely fashion by the public officials of the Ministry of Industrial Relations. In the first case, prior to the establishment of the conciliation and arbitration court, the parties submitted a document containing a mutual agreement in which each of the points contained in the list of demands submitted at the beginning of the procedure was resolved, thereby bringing the dispute to an end. In the second case, the file was submitted to the Directorate for Labour Mediation. During the mediation hearing held on 8 February 2013, the parties signed a settlement agreement in which they agreed upon all the points contained in the list of demands.

C. The Committee’s conclusions

1. 306. The Committee recalls that the present case refers to the alleged denial by the Ministry of Industrial Relations (the Ministry) of the right of workers and their organizations to file collective claims, which, in a number of cases, resulted in the unjustified failure to process lists of demands and, in one of the collective disputes where a number of lists of demands had not been received by the Ministry, in the Ministry declaring a subsequent strike movement unlawful and later authorizing the dismissal of 73 workers. In addition, the Committee notes that, according to the complainant organization, judicial remedies would not solve the problems caused by the Ministry’s attitude because of the control that the executive exercises over the judiciary.
2. 307. The Committee takes note of the Government’s observations to the effect that, in the first case mentioned in the complaint, the labour inspectorate had to dismiss several lists of demands because they did not comply with the legal provisions according to which works councils should be composed of more than 50 per cent of the workers and of no fewer than 30 workers. As regards the strike mentioned in the complaint, the labour inspectors noted that the company’s premises had been the subject of a hostile takeover, and that the work stoppage was not in line with the provisions of the Labour Code which justified the decision to authorize the dismissal of 73 workers; in that collective dispute, the individuals who acted on behalf of the workers had not been duly authorized to do so by the workers in question; in the other two cases mentioned by the complainant organization, the lists of demands were processed in timely fashion by the labour inspectorate and the collective disputes in question were resolved by the parties signing settlement agreements.
3. 308. As to the dismissal of five lists of demands submitted by workers of the company Reysac SA, the Committee takes note of the Government’s statement to the effect that the labour administration’s decision could be attributed to the failure to comply with the legal provisions according to which works councils and special works councils, which are the only workers’ bodies entitled to submit lists of demands, should be composed of more than 50 per cent of the workers and of no fewer than 30 workers.
4. 309. In this regard, the Committee recalls the principle according to which “while a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 287]. In this connection, the Committee has already had the opportunity to indicate, including in cases related to Ecuador [see Case No. 2138, Report No. 327, March 2002, para. 547], that “the legal requirement laid down in the Labour Code for a minimum of 30 workers to establish a trade union should be reduced in order not to hinder the establishment of trade unions at enterprises, especially taking into account the very significant proportion of small enterprises in the country” [see Digest, op. cit., para. 286].
5. 310. In the light of the above, and also recalling the repeated observations of the Committee of Experts on the Application of Conventions and Recommendations in this regard, the Committee once again requests the Government to take the necessary measures to repeal or amend the provisions of the Labour Code that lay down the minimum requirement of 30 workers to establish associations or assemblies to organize works councils. The Committee requests the Government to keep it informed of developments in this regard.
6. 311. The Committee also notes that, in the case concerning the abovementioned company, the Government indicates that the individuals who represented the workers in the collective dispute had not been duly authorized to do so by the workers in question, a requirement that has otherwise been met when establishing the Reysac SA workers’ union. The Committee also notes that one of the lists of demands submitted by the company’s special works council, a copy of which is appended to the complaint, indicates that the council had the support and signatures of 126 workers from the company, which would satisfy the legal requirements for establishing a council and submitting a list of demands.
7. 312. Recalling the principle according to which “workers and their organizations should have the right to elect their representatives in full freedom and the latter should have the right to put forward claims on their behalf” [see Digest, op. cit., para. 389], the Committee requests the Government to explain why it refers to the individuals who represented the workers in the collective dispute in question as being unauthorized to do so, and to indicate whether and to what extent this aspect was taken into account when the lists of demands were dismissed and when the labour administration took its subsequent decisions on this case.
8. 313. As to the alleged declaration of the illegality of the strike in the above company by a Regional Director of Labour, the Committee, while noting that, according to the complainant, the examination of the legality of the strike is the exclusive responsibility of the Conciliation and Arbitration Tribunal, recalls the principle that responsibility for declaring a strike illegal should not lie with the government, but with an independent body which has the confidence of the parties involved [see Digest, op. cit., para. 628]. The Committee requests the Government to take the appropriate measures, including legislative if necessary, to ensure that, in all circumstances, the declaration of the legality or illegality of strikes does not lie with the government but with an independent body which has the confidence of the parties involved. The Committee requests the Government to keep it informed in this regard.
9. 314. With respect to the decision issued by the labour inspection authorizing the dismissal of 73 workers for having participated in the strike and based on its finding of the hostile takeover of the company by non-company related persons, the Committee would first like to recall that the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Digest, op. cit., para. 667]. The Committee also recalls that arrests and dismissals of strikers on a large scale involve a serious risk of abuse and place freedom of association in grave jeopardy. The competent authorities should be given appropriate instructions so as to obviate the dangers to freedom of association that such arrests and dismissals involve [see Digest, op. cit., para. 674]. The Committee requests the Government and the complainant to inform it of any judicial appeals filed against the decisions issued by the labour administration in this case, and expects that a decision will be issued by an independent body not only on the legality or illegality of the strike but also on whether the possible perpetration of acts of violence during the strike justifies the dismissal of all 73 workers whose employment was terminated as a result of their participation in the strike.
10. 315. Lastly, as to the lists of demands submitted in the companies Maxigraf SA and Acromax chemical and pharmaceutical laboratory, the Committee takes note of the information provided by the Government indicating that, in both cases, the lists of demands were processed and that the collective disputes were resolved by the parties signing settlement agreements. Therefore, the Committee will not pursue its examination of the allegations relating to the two abovementioned companies.