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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ecuador (RATIFICATION: 1967)

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Article 3. Right to strike of public servants. Minimum services. The Committee previously noted that the Basic Act reforming the laws governing the public sector (Basic Reform Act) of 2017 prohibited strikes in the following public services: health; environmental sanitation; education; the justice system; the fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; and the postal service and telecommunications. The Committee asked the Government to take the necessary steps to ensure that the legislation did not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes. The Committee notes the Government’s indication that article 326(15) of the National Constitution prohibits the paralysation of the above-mentioned public services and provides that the law shall establish limits that ensure the functioning of the said services. The Government also indicates that Ministerial Order MDT-2018-0010 of 2018, regulating, among other rights, the exercise by public servants of the right to organize, including the right to strike, provides that the presence at work of at least 20 per cent of the total workforce of the institution must be guaranteed in order to cater for the essential needs of users and protect the facilities, assets and property of the institution. The Committee once again recalls that the ILO supervisory bodies have considered that it should be possible for strikes to be organized in numerous services including transport services, the public education service, fuel distribution services and the hydrocarbon sector (see the 2012 General Survey on the fundamental Conventions, paragraph 134). Furthermore, considering that the Basic Reform Act establishes that, in the absence of an agreement, the arrangements for the provision of minimum services will be established by the Ministry of Labour, the Committee once again recalls that any disagreement on minimum services should not be resolved by the government authorities but by a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised, and is empowered to issue enforceable decisions (see the 2012 General Survey on the fundamental Conventions, paragraph 138). The Committee once again requests the Government to take the necessary steps to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes and that the determination of minimum services is in accordance with the above principles.

Determination of minimum services in the private sector. The Committee previously asked the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event of disagreement of the parties concerning the determination of minimum services in the private sector, the decision is not taken by the government authorities. The Committee notes the Government’s indication that the new Government authorities will continue to analyse the reforms needed in the labour sphere, including the revision of section 515 of the Labour Code. The Government also indicates that the Ministry of Labour makes institutional services available to the workers and employers in order to ensure that strikes occur in the context of respect for labour rights, including those relating to minimum services. While taking note of the Government’s indications, the Committee notes with regret that no progress has been made in taking its comments into account. The Committee therefore once again requests the Government to take the necessary steps to amend section 515 of the Labour Code in the manner indicated.

Compulsory arbitration in the private sector. The Committee previously observed that both the National Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals, and asked the Government to adopt the necessary measures to amend the legislation, in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s reiteration that the Labour Code regards mediation as a dispute settlement mechanism and that when the Ministry is informed of disputes, it offers objective support in order to end the strike subject to agreement on the parties’ interests. The Government also indicates that, in the wake of the change of Government, once the new legislative authorities are in place, the analysis of disputes of this type will continue in order to guarantee protection for all stakeholders in labour relations. While noting these indications, the Committee recalls that the provisions in question contain the possibility of referring disputes not only to mediation but also to compulsory arbitration. In this regard, the Committee once again recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable: (i) when the two parties to the dispute agree to such arbitration; or (ii) when the right to strike may be restricted, or even prohibited, that is: (a) in the case of public servants exercising authority in the name of the State; (b) in disputes in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations referred to above.

Articles 3 and 6. Right to strike of federations and confederations. The Committee has been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes the Government’s indication that while the legal system guarantees workers’ right to be represented through their associations, federations and confederations, the Government cannot interfere in internal decisions taken by labour organizations since the regulatory framework guarantees freedom of election, decision-making and organization. The Committee also notes that FETRAPEC, PSI in Ecuador and the FUT emphasize once again that federations and confederations cannot legally call strikes because they can only be declared by enterprise-level unions. The Committee once again recalls that it has considered that strikes are often called by federations and confederations which should be recognized as having the right to strike. Consequently, legislation which denies them this right is incompatible with the Convention (see the 2012 General Survey on the fundamental Conventions, paragraph 122). The Committee therefore once again requests the Government to take the necessary legislative measures to ensure that trade union rights, including the right to strike, can be fully exercised by federations and confederations.