Rapport définitif - Rapport No. 299, Juin 1995

1. 42. The complaint in this case is contained in a communication from the Latin American Central of Workers (CLAT) dated 24 November 1994. The Government sent its observations in a communication dated 20 January 1995.
2. 43. Ecuador has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 44. In its communication dated 24 November 1994, the Latin American Central of Workers (CLAT) states that in recent years the Municipality of Lago Agrio and the Trade Union of Workers of that municipality signed four collective agreements, the last of which (concluded in 1992) provided for a six-year period of employment stability. The complainant organization adds that on 23 March 1994, before the term of the fourth collective agreement expired, the municipal workers' union communicated a draft fifth collective agreement to the municipality, through the labour inspectorate. In its letter notifying the inspectorate, the trade union explained that there were no changes in the agreement as regards employment stability. According to the complainant organization, on 26 March 1994 the municipal authorities accepted certain clauses of the draft agreement that had been presented to it and requested that others be amended or removed. After the bargaining period had been extended, both parties concluded their negotiations on 10 June 1994, but on 27 June 1994 the municipal authorities stated that they were unable to sign the fifth collective agreement since the municipal budget for the year 1994 had not been approved, and they therefore ended the negotiations.
2. 45. The complainant organization states that, faced with the impossibility of continuing negotiations, the trade union requested the Tripartite Conciliation and Arbitration Tribunal to hand down a ruling or a decision compelling the municipality of Lago Agrio to sign the fifth collective agreement. The CLAT reports that, inter alia, in a ruling handed down on 31 October 1994, the Tribunal stated that, as regards employment stability, "it is considered advisable to reduce it and align it with the term of the collective agreement" (the draft collective agreement provided for a six-year period of employment stability - like the previous agreements - which was reduced to two years). Lastly, the complainant organization states that the decision of the Tribunal cannot be appealed at national level, but it adds that the trade union filed a petition requesting that certain points be clarified and its decision expanded on, and that this appeal had been rejected by the majority of the Tribunal on 11 November 1994 (two of its members opposed the majority vote).
3. 46. The CLAT concludes by alleging a violation of Convention No. 98 on the grounds that obstacles were placed in the way of collective bargaining.

B. The Government's reply

1. 47. In its communication dated 20 January 1995, the Government states that the Ecuadorian legal system expressly recognizes two possible phases in the negotiation of collective agreements: the first is conducted by the parties themselves during a period of 30 days, which may be extended, in the presence of the labour inspector; the second takes place when the parties fail to reach an agreement and is held before a Tripartite Conciliation and Arbitration Tribunal which is competent to hand down a ruling on the points in dispute of the draft collective agreement.
2. 48. The Government points out that in the case referred to in the present complaint, the parties were unable to reach an agreement on all of the clauses of the draft collective agreement presented by the Single Central Committee of Workers of the Municipality of Lago Agrio, and that the municipality authorities had expressly rejected, inter alia, the proposed clause concerning a six-year guarantee of employment stability. The Government adds that the position of the trade union of the Municipality of Lago Agrio to the effect that the employer is obliged to accept its proposal without objection is entirely mistaken and is not in keeping with the spirit of the Convention on the Right to Organize and Collective Bargaining as regards the freedom of the parties to engage in voluntary negotiation.
3. 49. The Government states that the dispute was referred to the Tripartite Conciliation and Arbitration Tribunal at the workers' request and that this implies their willingness to accept the decision of a jurisdictional body established by the national Constitution and the laws of the Republic. Lastly, the Government states that it is not competent to investigate the reasons underlying the Tribunal's decision to reduce the guarantee of employment stability laid down in the workers' draft collective agreement from six years to two, i.e. aligning it with the term of the collective agreement (the Government encloses with its reply a copy of the ruling handed down by the Tribunal, which provides, inter alia, "that as regards stability, being a particularly disputed point, it is considered advisable to reduce it and align it with the term of the collective agreement; in the event of infringement compensation shall be paid in accordance with the provisions of the Labour Code; ...").

C. The Committee's conclusions

1. 50. The Committee observes that this complaint refers to the refusal of the authorities of the Municipality of Lago Agrio to accept a draft collective agreement presented by the trade union of workers of that municipality, and the trade union's disagreement with a ruling on this subject handed down by a conciliation and arbitration tribunal.
2. 51. The Committee notes the Government's statement that the parties in question engaged in collective bargaining in order to conclude a collective agreement and that in view of the impossibility of reaching an agreement, and at the request of the Single Central Committee of Workers of the Municipality, the negotiations were referred to the Tripartite Conciliation and Arbitration Tribunal - a jurisdictional body whose decisions cannot be appealed at national level. The Committee also notes that this Tribunal ruled that, concerning the workers' employment stability, "being a particularly disputed point, it is considered advisable to reduce it and align it with the term of the collective agreement", reducing the period to two years (the workers requested a six-year period of stability in their draft agreement); and that the parties "should sign the fifth collective agreement as set forth in the decision".
3. 52. In this respect, the Committee observes that the parties negotiated freely on the content of a collective agreement, that faced with the impossibility of reaching an agreement they decided that the points in dispute during the negotiations be settled by a Tripartite Conciliation and Arbitration Tribunal, and that the trade union does not agree with the decision of the Tribunal (which had been called at its initiative). In these circumstances, in view of the fact that the parties had appeared before this Tribunal of their own free will and that the legislation did not impose compulsory arbitration, the Committee considers that the principles of free and voluntary collective bargaining have not been violated in this case.