Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided in the Government’s report. The Government again states that the necessary measures to give effect to the Convention have not yet been taken. It refers, in a general way, to binding decisions of the Community of Andean States on international affairs preventing member States from regulating the same subject separately for their own countries. The Committee notes that since the entry into force of the Convention for Ecuador in 1989, the Government has given various and changing explanations as to why the national legislation has not been adjusted to the requirements of the Convention. Despite repeated offers for technical assistance and two ILO missions discussing the issue with the Government, no progress has been made. The Committee repeats its proposal to make use of ILO technical assistance and once again urges the Government to ensure compliance of national law and practice in national and international road transport with the provisions of the Convention.

In this respect, the Committee notes that the Labour Code of 12 June 1997 contains special regulations on the working conditions in private and public transport enterprises (sections 322-336; and also sections 10, 311 and 313 of the Labour Code). These special provisions appear to exclude the application of the general provisions on working time and rest periods, laid down in sections 47-68 of the Labour Code, in so far as they regulate the same subject especially for transport workers and employees.

Referring, in particular, to sections 330 and 331 of the Labour Code, the Committee points out that in view of the precedence of these provisions over the general working-time provisions of the Labour Code, section 47, paragraph 1, providing for an eight-hour work day and section 50, paragraph 2, of the Code, according to which Saturdays and Sundays are legal weekly holidays, appear not to be applicable. Indeed, sections 330 and 331 explicitly render unnecessary any need of determining, in the employment contract, a maximum duration of work and leave it to the discretion of the employer to authorize, in certain circumstances, more than eight hours of work per day, including on Sundays, Saturday afternoons and public holidays. Moreover, section 331 of the Labour Code, which leaves the decision on hours of work entirely to the discretion of transport entrepreneurs, appears to permit the entrepreneur to evade the authorization procedure in respect of work on Saturday afternoons and Sundays, as laid down in section 52 of the Labour Code.

In this respect, the Committee once more refers to the communication of the Ecuadorian Central of Class Organizations (CEDOC), dating back to 1994, which points to problems of observance of rest periods in road transport, due to the absence of a control mechanism for working time, leaving it to the entrepreneur and the employed driver to have breaks according to distance driven or frequency of journeys. The Government is again invited to comment on these observations.

In view of the aforementioned points, the Committee cannot but maintain its view that the Labour Code in its current form does not ensure conformity with the main provisions of the Convention such as those on hours of work, compulsory breaks, maximum total driving time or daily rest. It hopes that the Government will, as a matter of urgency, undertake the necessary efforts to bring national law and practice into line with the provisions of the Convention.

[The Government is asked to supply full particulars to the Conference at its 91st Session and to report in detail in 2003.]