Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 357, Juin 2010

1. 415. The complaint is contained in communications of the National Union of Educators (UNE) and Education International (EI) of 6 November and 15 December 2009. The UNE sent additional information in a communication of 1 March 2010.
2. 416. The Government sent its observations in a communication of 27 February 2010.
3. 417. 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. Allegations of the complainants

1. 418. In their communications of 6 November and 15 December 2009, the UNE and EI state that on 19 August 2009, the Ministry of Education of Ecuador issued circular No. 082 addressed to all regional undersecretaries, provincial directors, rectors and heads of educational institutions, heads of provincial human resources and payment offices and collectors of educational centres. The complainant organizations allege that in its communication, the Ministry of Education issued an order “that from the month of August 2009, deductions should not be made from the remuneration of members of the national teaching profession through the payroll of any financial units, whether central, regional, provincial, or the collectors or payment offices of individual educational establishments, for contributions to the UNE”.
2. 419. The complainants add that the Ministry’s communication is based on circulars from the year 1981 and the Constitution of the UNE, as it considers that there is no legal basis for continuing to make deductions from members of the teaching profession through the payroll of the Ministry and its various departments for contributions to the UNE. In the light of this decision, the UNE’s national membership is obliged to approach the union directly to pay their union dues.

B. The Government’s reply

1. 420. In its communication of 27 February 2010, the Government states that the Minister of Education, in circular No. 0392 DM-2010 of 17 February 2010, provided his observations on the allegations made by the UNE.
2. 421. The Ministry of Education states that at no time was a decision made to suspend deductions from members of the national teaching profession. What it said was that the facilities of the Ministry of Education should not be used to make the deductions in favour of the UNE through the payroll of the Ministry and its various departments. Under current legislation, it was prohibited to make deductions not authorized by the public servant himself or by legislation.
3. 422. In this respect, the Ministry of Education informs that article 124 of the Organic Act of the Civil Service and Administrative Service and Unification and Approval of Public Sector Remuneration, clearly establishes: “Remuneration and pensions are not transferable or subject to distraint. The amounts of remuneration and pensions of servants and workers subject to this Act may not be transferred between living persons and are not subject to distraint, except for the payment of maintenance due by law. Any type of deduction from the remuneration of public servants is prohibited, unless expressly authorized by the latter or by law”. The circular sets out the legal position. It is addressed by higher authority to its public servants (staff of finance departments at central, provincial or institutional level) to regulate a particular aspect of the administration. The circular provides instruction on a specific situation.
4. 423. The Ministry of Education also refers to article 23 of the Organic Education Act, which states “The Ministry of Education and Culture is responsible for the functioning of the national education system, the formulation and implementation of cultural and sports policy and the promotion of scientific and technological development”. In no way can the instruction given to the staff of Ministry finance departments be qualified as an excess or abuse of power, because it is contemplated in a legal provision and, moreover, it does not serve any particular interest but the general. Moreover, leaving the previous arrangement in place could be regarded as an abuse of power by benefiting a particular interest, exclusively that of a private organization, the UNE.
5. 424. Furthermore, article 17 of the Statute of the Judicial–Administrative Regime of the Executive Function (Estatuto del Regimen Juridico Administrativo de la Funcion Ejecutiva – ERJAFE) states as follows: “MINISTRIES. – Ministries of State have decision-making powers with respect to matters inherent in their ministries without the need for any authorization from the President of the Republic, except in those cases expressly indicated in special laws”. The Ministry of Education adds that account should be taken of the need to administer public resources properly, based on principles of efficiency and effectiveness, one of which is that public servants in the finance departments of provincial education directorates, like those of colleges, must devote their time to matters for which the Ecuadorian State pays them, i.e. real and effective provision of the public education service, without diverting part of their efforts to the service of particular entities.
6. 425. The Ministry of Education considers that ILO Convention No. 87 does not apply to this claim, since the ILO itself recognizes the internal capacity of each sovereign State to regulate its labour relations with its employees in the public sector, and national legislation recognizes the character of a worker to someone who carries out manual activities which place physical effort above intellect. The Constitution of the UNE is subject to the Constitution, Civil Code and Regulations for the approval of statutes, reforms and codification, liquidation and dissolution and registration of shareholders and directors, of the organizations listed in the Civil Code and special laws, and in no way to the provisions of article 440 of the Labour Code. Circular No. 082 indicates that there is no legal basis to continue making deductions from members of the teaching profession via the payroll of the Ministry and its departments with respect to contributions to the UNE.

C. The Committee’s conclusions

1. 426. The Committee observes that in this case, the complainant organizations object to Ministry of Education circular No. 082 which provides that from the month of August 2009, deductions should not be made from the remuneration of members of the national teaching profession through the payroll of any financial units for contributions to the UNE and that members of the teaching profession who voluntarily wish to contribute to that trade union must approach the UNE directly to ascertain how to make their contribution.
2. 427. The Committee notes that the Government states that the Ministry of Education indicated that: (1) at no time was a decision made to suspend deductions from members of the national teaching profession, but that the facilities of the Ministry of Education should not be used to make deductions in favour of the UNE through the payroll of the Ministry and its various departments; (2) under current legislation, it was prohibited to make deductions not authorized by the public servant himself or by legislation; (3) the instruction could not be qualified as an excess or abuse of power, because it is contemplated in a legal provision and, moreover, it does not serve any particular interest; (4) it had the obligation to administer public resources properly, based on principles of efficiency and effectiveness, and public servants must devote their time to matters for which the State pays them, without diverting part of their efforts to the service of particular entities; (5) the circular in question indicates that there is no legal basis to continue making deductions from members of the teaching profession via the payroll of the Ministry and its departments as contributions to the UNE; and (6) Convention No. 87 does not apply to this claim, since the ILO itself recognizes the internal capacity of each State to regulate its labour relations with its employees in the public sector.
3. 428. The Committee recalls that on numerous occasions when it examined similar allegations, it emphasized that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, para. 475]. The Committee further recalls that the requirement that workers confirm their trade union membership in writing in order to have their union dues deducted from their wages does not violate the principles of freedom of association [see Digest, op. cit., para. 476]. In these circumstances, bearing in mind that, as recognized in Ministry of Education circular No. 082, retentions of trade union dues on behalf of the UNE had previously been taking place, and the decision to suspend them occurred without any special reason, and the cessation of these retentions could very seriously prejudice the UNE, in particular because it was a national organization, the Committee requests the Government that, in line with the practice which it had followed previously, it should immediately restore the deductions of dues of UNE members who had authorized that deduction. The Committee requests the Government to keep it informed in this respect.