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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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Observation

Direct Request

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The Committee notes the Government’s partial reply to the 2022 observations of the International Trade Union Confederation (ITUC). The Committee requests the Government to provide its comments with respect to the alleged detention of demonstrators who took part in a national strike in 2021. The Committee notes that the Government replies in its report to the joint observations of the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador, sent in 2022. The Committee also notes the joint observations of FETRAPEC, PSI in Ecuador and the United Workers’ Front (FUT), received on 31 August 2023, which cover in detail questions examined by the Committee in the present comment, indicate that the delay in the process of registering new union executive committees has become an ongoing problem that obstructs the proper functioning of trade unions, and highlight the refusal to register trade unions for reasons not covered by the Constitution or the legislation. The Committee notes that, according to FETRAPEC, PSI in Ecuador and the FUT, the Basic Employment Bill, which they had indicated did not take into account the Committee’s comments, was discarded. The unions also indicate that on 3 May 2023 Executive Decree No. 730 was issued, ordering the armed forces to take action to suppress organized crime, and they point out that this could be applied with regard to any attempt at social mobilization or protests. The Committee requests the Government to provide its comments with respect to the above-mentioned matters.

Technical assistance. Direct contacts mission. The Committee recalls that the Conference Committee on the Application of Standards (the Conference Committee), when examining the application of the Convention by Ecuador in June 2022, invited the Government to avail itself of technical assistance from the Office and requested the Government to accept a direct contacts mission. The Committee notes the Government’s indication that, in view of the current political situation in the country and the change of Government, the Ministry of Labour will resume talks and liaise with the Office in 2024 with a view to a possible direct contacts mission. The Committee expresses the firm hope that the direct contacts mission requested by the Conference Committee will take place as soon as possible and also hopes that the Government will avail itself of technical assistance from the Office, trusting that such assistance will contribute to progress in the adoption of specific, effective and time-bound measures, in consultation with the social partners, in order to bring the legislation into conformity with the Convention with regard to the points set out below.

Trade union rights and civil liberties. Murder of a trade unionist. In its last comment, the Committee deplored the murder on 24 January 2022 of Mr Sandro Arteaga Quiroz, secretary of the Union of Workers of the Manabí Provincial Government, and strongly urged the Government to take without delay all necessary measures to determine responsibility and punish those guilty of this crime. The Committee notes the Government’s indication that it consulted the Public Prosecutor’s Office, which sent it information on the offences in which Mr Arteaga Quiroz featured as a complainant. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that the file has been under investigation at the Public Prosecutor’s Office since 25 February 2022 but that the corresponding judicial proceedings have still not been initiated, which, according to the unions, demonstrates lack of due diligence on the part of the State. The Committee notes with regret that there has been no progress in the investigation and once again underlines the need for independent judicial investigations without delay in order to fully elucidate the facts and determine responsibility, punish the perpetrators and instigators and prevent any recurrence of such acts. The Committee once again strongly urges the Government to take the necessary steps without delay to determine responsibility and punish those guilty of this crime and keep it informed in this respect.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations and enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years, the Committee has been drawing the Government’s attention to the need to amend sections 443, 449, 452 and 459 of the Labour Code in such a way as to reduce the minimum number of members required to establish workers’ associations and enterprise committees and enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes that the Government does not refer in its report to the revision of the sections of the law relating to the number of workers required for the establishment of workers’ associations and enterprise committees, although the Committee has previously noted the position of several trade unions that the number of no less than 30 is disproportionate and unreasonable in view of the Ecuadorian business structure. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that, according to data provided by the Ministry of Labour, in 2022 the biggest enterprises in the country represented barely 0.5 per cent and it would be impossible to form trade unions in over 90 per cent of production units in the country. FETRAPEC, PSI in Ecuador and the FUT also emphasize that it is imperative that the possibility of organization is guaranteed for autonomous workers and informal workers. As regards the establishment of organizations comprising workers from a number of enterprises, the Committee noted with interest in its last comment that, in compliance with a ruling handed down in 2021, the Ministry of Labour was ordered to register the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) as a branch union, despite being formed of workers from various enterprises, and the Ministry was also ordered to adopt regulations for the registration of unions by branch of activity. In early 2022, the Ministry registered ASTAC as a branch union. The Committee noted that the Ministry and the Office of the Procurator-General had applied for an extraordinary protection order against the ruling for lack of adequate grounds and legal certainty and failure to comply with due process. The Committee notes the indication of the Government, FETRAPEC, PSI in Ecuador and the FUT that a decision on the application for the extraordinary protection order is still pending in the Constitutional Court. The Committee notes the indication of FETRAPEC, PSI in Ecuador and the FUT that the Government has not fully complied with the ruling since it has refused to adopt regulations for the establishment of branch unions, asserting that the ruling on the registration of ASTAC is only applicable between the parties and its legal effects do not extend beyond them. The Committee notes that these issues were examined by the Committee on Freedom of Association (CFA) in Cases Nos 3148 (Reports Nos 381 and 391, March 2017 and October 2019) and 3437 (Report No. 404, October 2023) and that on these occasions the CFA noted with regret that, despite its recommendations and follow-up by the Committee, both the national legislation and the practice of the Ministry of Labour still did not allow the establishment of primary-level unions comprising workers from various enterprises. Recalling once again that, under the terms of Articles 2 and 3 of the Convention, workers must be able, if they so wish, to establish primary-level organizations at a level higher than the enterprise, the Committee reiterates its strong expectation that the above-mentioned ruling will contribute to allowing the establishment of trade union organizations by branch of activity, and also hopes that the Committee’s assessment of this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. The Committee once again urges the Government to take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and to keep it informed of all developments in this respect. The Committee also requests the Government to report on the proceedings before the Constitutional Court relating to the extraordinary protection order and to indicate whether self-employed and informal workers enjoy the rights established in the Convention, specifying the corresponding legislative provisions.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of the Regulations on Labour Organizations No. 0130 of 2013, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their term of office, as set out in their respective union constitutions, to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes the Government’s indication that the Ministry of Labour is currently reviewing a draft reform of the Regulations on Labour Organizations particularly with regard to section 10(c) and that it will keep the Committee informed of progress made. The Committee notes that, according to FETRAPEC, PSI in Ecuador and the FUT, the Government has repeatedly maintained that trade union organizations can regulate in their own constitutions how to proceed in cases where they are without leadership, respecting the unions’ right to draft their constitutions and regulate their own administration; but when it comes to revising the constitutions, the Government demands that the possibility for executive committees to extend their functions should only be allowed “in duly verified cases of force majeure”. The above-mentioned unions also indicate that where unions are without leadership as a result of not convening elections within the deadline specified in the Regulations, this has an impact on federations and confederations because the Ministry of Labour does not recognize decisions taken by these organizations when they have not “registered their executive committees”, thereby limiting second- and third-level organizations’ capacity for action. Recalling that, under Article 3 of the Convention, trade union elections are an internal matter for organizations and must be determined by the union constitutions themselves, and observing that the consequences under the Regulations if the deadlines are not respected – the loss of powers and competencies for trade union committees – run a serious risk of paralyzing the trade union’s capacity for action and limiting the capacity for action of second- and third-level organizations, the Committee once again reiterates its strong expectation that the draft reform will take its comments into consideration, and that section 10(c) will be amended along the lines indicated. The Committee requests the Government to report on all developments in this regard.

Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that, while in 2015 it had noted that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee, in its 2021 comment it observed that section 49 was declared unconstitutional by a ruling of 2018 because it violated the principle of trade union independence by providing that the legislation determined how the executive bodies of enterprise committees were constituted and who had the right to vote in their elections. The Committee noted with regret that, as a result of the declaration of unconstitutionality, section 459(4) had reverted to its original wording, imposing the requirement of Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The Committee notes the Government’s indication that Constitutional Court rulings are final and are not subject to appeal; that the Constitution guarantees the enjoyment of individual rights under equal conditions for nationals and naturalized foreigners and that the guaranteed rights include the right to elect and be elected. The Committee recalls the Government’s previous indication that Ecuadorian nationality is required to be an officer of an enterprise committee, but not to be a leader or member of other forms of association. In this regard, the Committee noted that, under the terms of the Labour Code, enterprise committees are one of the forms that trade unions can take within an enterprise. The Committee emphasizes once again that, under Article 3 of the Convention, all workers’ and employers’ organizations shall have the right to elect their representatives in full freedom and that national legislation should allow foreign workers to take up trade union office, if permitted under the organization’s constitution and rules, at least after a reasonable period of residence in the host country. The Committee therefore once again urges the Government to amend section 459(4) of the Labour Code and to keep it informed of all developments in this regard.It also invites the Government to bring the Committee’s comments in this regard to the Constitutional Court’s attention.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee had previously indicated to the Government the need to amend section 459(3) of the Labour Code, which provided that the role of officer of an enterprise committee may be filled by any worker, whether or not a union member, who stands for office. The Committee noted that the Constitutional Court ruling of 2018 referred to above also had an impact on the wording of section 459(3), which reverted to its original wording, according to which there is no provision for non-unionized workers to be able to participate in enterprise committee elections. The Committee notes the Government’s indication that Constitutional Court rulings are final and not subject to appeal and that the Government considers it necessary to maintain tripartite dialogue in order to determine the viability of a possible reform of the text in force. Taking due note of these indications, the Committee once again requests the Government to hold consultations with the social partners in relation to the need to amend section 459(3) of the Labour Code to bring it into full compliance with the principle of trade union autonomy and to keep it informed of all developments in this respect.

Application of the Convention in the public sector

Article 2. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public employees were excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that, under Articles 2 and 9 of the Convention, with the sole possible exception of members of the police and of the armed forces, all workers have the right to establish and to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. Noting with regret that the Government has not provided any information in this respect, the Committee once again urges the Government to take the necessary steps to bring the legislation into line with the Convention in such a way that all workers, with the sole possible exception of members of the police and of the armed forces, have the right to establish and to join organizations of their own choosing. The Committee requests the Government to keep it informed of all measures taken in this regard.

Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee previously observed that, according to the provisions of the Basic Reform Act, the committees of public servants, which must comprise “50 per cent plus one” of the staff of a public institution, are responsible for defending the rights of public servants and are the only bodies that can call a strike. Although the Government indicated that public servants, when establishing their organizations, have the right to draft their constitutions, in which they may adopt any means to defend their interests, the Basic Reform Act indicates that the committees of public servants are responsible for defending the rights of public servants and are the only bodies that can call a strike. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee asked the Government to provide information on organizations of public servants other than the committees of public servants and to indicate what means they have for defending the occupational interests of their members. The Committee once more notes with regret that it has not received this information and reiterates its request to the Government to provide information in this respect.Recalling that, under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes, the Committee once against requests the Government to take the necessary steps to ensure that the legislation does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously drew the Government’s attention to the need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Committee notes the Government’s indication that the appropriate procedure for public servants to assert the right to strike is regulated in chapter III (on strikes) of the Basic Public Service Act and refers to the provisions of the Act relating to declaring strikes illegal, indicating that the State has recourse to criminal proceedings as a last resort. The Committee notes with regret that the information provided by the Government suggests that no progress has been made on taking account of its comments. The Committee recalls that several trade unions previously indicated that section 346 of the Basic Comprehensive Penal Code was being used to criminalize social protest. The Committee once again strongly urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures are taken, to ensure that this provision is not used to criminalize social protest.

Article 4. Dissolution of associations of public servants by the administrative authorities. Recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of associations of public servants, the Committee previously urged the Government to ensure that the provisions of Decree No. 193, which maintains engagement in party-political activities as grounds for dissolution and provides for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication that the Basic Reform Act establishes that associations of public servants can only be dissolved by judicial ruling. The Committee also recalls that FETRAPEC, PSI in Ecuador and other organizations pointed out that although the provision of Decree No. 193 that maintained engagement in party-political activities as grounds for dissolution was declared unconstitutional in 2022, and that while Decree No. 193 regulates only social organizations and not trade unions, the Government nevertheless applies the grounds for forced dissolution of social organizations to trade unions because it considers that they are “civil society” organizations and not of a trade union nature. In view of the above, and recalling that Article 4 of the Convention prohibits the suspension or administrative dissolution of associations of public servants, the Committee urges the Government to ensure that the provisions of Decree No. 193 are not applied to associations of public servants whose purpose is to defend the economic and social interests of their members.

Administrative dissolution of the National Federation of Education Workers (UNE). After noting the registration of social organizations related to the UNE (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government: (i) to indicate whether the registration of the UNE-E with the Under-Secretariat of Education in Quito meant that the UNE had been able to resume its activities of defending the occupational interests of its members; (ii) to take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) to ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee noted that the UNE had filed several legal actions against the dissolution decision and that the Constitutional Court ruling on an extraordinary protection order was still pending. The Committee notes the indication of FETRAPEC, PSI in Ecuador and the FUT that the Constitutional Court, by Ruling No. 579-18-EP/23 of 12 July 2023, partially admitted the extraordinary protection order, declared that the right to due process had been violated as regards ensuring adequate grounds for public authority decisions, invalidated the ruling of 18 January 2018 (which had dismissed the appeal filed by the UNE chairperson) and ordered that a new associate judge of the Special Chamber for Administrative Disputes at the National Court of Justice, assigned by drawing lots, should decide whether or not to admit the appeal filed by the complainant. FETRAPEC, PSI in Ecuador and the FUT also consider that, irrespective of the judicial decision on this case, the Government could revise its own acts and overturn the administrative act which dissolved the UNE without a judicial order to that effect being essential. The Committee requests the Government to provide information on any ruling handed down by the Special Chamber for Administrative Disputes at the National Court of Justice as well as on whether the Government is able to revise its own acts as suggested by the trade unions, and once again requests the Government to provide the other information requested by the Committee in its previous comment.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 202 4 .]