The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee noted with regret that no actions had been taken to follow up the technical assistance provided by the Office in December 2019.

The Committee also noted the long-standing issues regarding compliance with the Convention in Ecuador.

The Committee urged the Government to take action to foster an environment conducive to the full enjoyment of the right of workers and employers to freedom of association. The Committee noted that both the Government and the social partners raised the importance of labour law reform. The Committee expressed the hope that the Government would seize this opportunity to bring its legislation and practice fully into line with the Convention in consultation with the social partners.

Taking into account the discussion, the Committee urges the Government to take effective and time-bound measures, in consultation with the social partners, to:

- ensure full respect for the right of workers, including public servants, to establish organizations of their own choosing, for the collective defence of their interests, including protection against administrative dissolution or suspension;

- amend legislation to ensure that the consequences of any delays in convening trade union elections are set out in the by-laws of the organizations themselves;

- resolve registration of the National Federation of Education Workers (UNE);

- give effect to the road map presented in December 2019 by the ILO technical assistance mission;

- initiate a process of consultation with the social partners to reform the current legislative framework in order to enhance coherence and bring all the relevant legislation into compliance with the Convention.

The Committee invites the Government to avail itself of technical assistance from the Office.

The Committee requests that the Government accept a direct contacts mission.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 communicating information on the application of the Convention in law and practice, in consultation with the social partners.

The Committee took note of the oral statements made by the Government representative and the discussion that followed.

Taking into account the expressed views, the Committee called upon the Government of Ecuador to:

- ensure full respect for the right of public servants to establish organizations of their own choosing for the collective defence of their interests, including the protection regarding administrative dissolution or suspension;

- revoke the decision to dissolve the UNE and to allow the free functioning of the trade union;

- amend legislation to ensure that the consequences of any delay in convening trade union elections are set out in the by-laws of the organizations themselves;

- initiate a process of consultation with the most representative employers’ and workers’ organizations to identify how the current legislative framework needs to be amended in order to bring all the relevant legislation into compliance with the text of Convention No. 87.

The Committee invited the Government to consider availing itself of ILO technical assistance in relation to the legal reform process. The Committee invited the Government to report progress in relation to the abovementioned recommendations to the Committee of Experts in 2017.

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A Government representative, Minister of Labour, thanked the Committee for having the opportunity to speak in front of it and declared that there were no problems of violations of workers' rights in Ecuador. The State respected and guaranteed trade union rights and freedom of association could be seen through the existence of bodies devoted to negotiation. He mentioned the following points concerning the draft legislation prepared by the technical assistance mission (referred to in the report of the Committee of Experts) which visited Ecuador in 1997:

-- concerning the amendment of the Civil Service and Administrative Act made so that civil servants could establish trade union organizations, he stressed that the workers concerned already had the right to organize. In Ecuador, there was a legislative overlapping between the Act and the Labour Code. The Civil Service Act gave a greater protection to those covered by it vis-à-vis the protection granted to other workers by the Labour Code. If one made the necessary amendments, this would imply in fact a regression. He invited a mission to go to the country to undertake a legal analysis which would confirm that there was an overlap;

-- concerning the repeal of section 60(g) of the same Act which prohibited civil servants from striking or supporting or participating in strikes, and from establishing trade unions, he stated that the Ecuadorean Constitution guaranteed the existence of trade unions. There could only be one trade union for each state entity, which did not imply that workers did not benefit from the right to organize. Concerning the right to strike, he stated that if strikes were authorized in the public sector, a minority would endanger the rights of the majority since, unlike in the private sector, there was no question of balancing the forces between employers and workers. Workers enjoyed the right to strike within the existing framework and there was compulsory mediation to resolve problems. He considered that a mission could make a note of this reality and that in this case also, there was an overlapping of legal institutions;

-- concerning the requested amendment of section 441 of the Labour Code so that in the event of refusal of registration, the trade union or association in question could appeal to the competent judicial authorities, he pointed out that the Labour Code stipulated that if the Labour Minister did not decide on a request for registration within 30 days, the trade union would be registered automatically. The amendment proposed was a violation of freedom of association;

-- concerning the amendment of section 443(11) of the Labour Code to the effect that organizations of a higher level enjoyed the right to express their opinions on the Government's economic and social policies, he stated that there was no trade union which did not have a provision in this respect in their by-laws, and that in Ecuador everyone could express their opinions and provisions were not needed in this regard since this right was enshrined in the Constitution;

-- concerning the requirement to be Ecuadorean in order to serve as a trade union official (section 455(4)), he stated that in Ecuador, the right to work was recognized for everyone and he did not know if that right was a labour or a political guarantee. A study needed to be carried out in this respect;

-- concerning the amendment of section 461 of the Labour Code on the dissolution by administrative measures of a works committee, he indicated that it was not necessary to appeal to a judicial body. The administrative channels provided for had to be used;

-- concerning the minimum service in the event of a strike (section 69 of Act No. 133), he stated that one had to find a clearer text than that which was proposed as an amendment;

-- concerning the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes, he pointed out that due to the wording of this Decree and the existing confusion between work stoppages and strikes, this Decree was not applied and was outdated. Being contradictory, it was never applied. There was no positive outcome of the steps taken before Congress to repeal this Decree. Consequently, an action should be instituted so that the judicial authorities declared this Decree to be unconstitutional;

-- concerning the need to reduce the minimum number of workers needed to be able to establish associations or works committees, he indicated that it was necessary for a committee to carry out a quantitative statistical study to determine the number which should be fixed;

-- concerning the need for civilian workers associated with or dependent on the armed forces to enjoy the right to join trade unions, he stated that a study would have to be carried out of the cases mentioned by the Committee of Experts;

-- concerning the deprival of the guarantee of stability to workers who took part in a solidarity strike (section 65 of Act No. 133), he pointed out that in Ecuador, there was no possibility of dismissing workers who respected the provisions pertaining to solidarity strikes;

-- concerning the implicit refusal of the right to strike for federations and confederations (section 491 of the Labour Code), he indicated that this refusal did not exist in the legislation. The possibility for works councils to declare a strike under the terms of the Labour Code did not constitute an implicit refusal. If there were no works councils, there was no violation of the right to strike; over 50 per cent of the workers in an enterprise could declare a strike.

Finally, he stated that the Ecuadorean Government was ready to comply with ratified Conventions.

The Employers' members noted that the Government representative had tried -- in a strange way -- to make this Committee believe that national legislation was in conformity with the requirements of Convention No. 87. The Government representative had not succeeded, especially in light of the report of the Committee of Experts which indicated the contrary. During an ILO mission in 1997, two Bills had been drafted providing for the repeal or amendment of certain legislative provisions which were the subject of comments by the Committee of Experts. The drafting of these two Bills constituted a positive approach to bringing national legislation into conformity with the provisions of the Convention. The content of these Bills had been described in detail in the report of the Committee of Experts and pertained essentially to the establishment and registration of trade unions, but also to the right of trade unions to organize their administration and activities as well as their right to express their opinions on the Government's economic and social policies in a peaceful manner. A control system should also have been established.

The question regarding the right to strike had been discussed. While the Employers' members differed from that of the Committee of Experts in this area, that did not prevent States from following the observations made by the Committee of Experts in this domain. In conclusion, it was clear that amendments to legislation should be carried out. For this reason it was surprising that these Bills had not been mentioned at all. On the contrary, the Government representative had tried to show that there had been no need for amendments to legislation which, in the view of the Employers' members, represented an improved situation. Apart from the Committee's stance concerning the right to strike, they endorsed the Experts' view that freedom of association and protection of the right to organize did not exist in Ecuador and that legislative changes were necessary. Therefore the Government should be urged by this Committee to review its current legislation urgently.

The Workers' members thanked the Government representative for the information he had provided. They recalled that this case had been discussed by the Committee on numerous occasions in 1985, 1987, 1988, 1992 and 1993. Several of the matters raised by the Committee of Experts had been dealt with in its report for a long time and had even been the object of special paragraphs in the past (in 1988 and 1989). Since then, several direct contacts missions and technical assistance missions by the ILO had been conducted in Ecuador in order to contribute to bringing the legislation into conformity with the Convention. Very limited progress had been made in 1991 through the adoption of Act No. 133 amending the Labour Code. However, very substantial discrepancies between law and practice on the one hand, and the Convention on the other, subsisted. This was why this Committee discussed this case in 1993. Since then, a new mission of technical assistance of the ILO had been conducted in Ecuador from 4-8 September 1997. This mission contributed to the drafting of two Bills aimed at improving the conformity between legislation and the Convention. Since then, however, the Workers' members, as well as the Committee of Experts, had noted that the Government did not refer to these two Bills in its report. On a more serious note, the Government had informed the Committee in its report that Bills dating from 1989 had been taken up again and submitted to Congress. This definitely constituted a large step backwards. The Workers' members could not accept such an attitude. It demonstrated a lack of a true political will to cooperate with the supervisory bodies. The entire Committee had always reacted against such an attitude. Technical assistance and direct contacts missions of the ILO were not intended to serve as a means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions. The Workers' members stressed that the discrepancies between law and practice on the one hand, and the Convention on the other, concerned very important issues. The Committee of Experts recalled them in its report. They included the following: the refusal to grant civil servants and employees in the armed forces the right to associate freely; the lack of efficient and independent remedies against refusals to register a trade union; the high number of members required to set up a trade union which raised concern in a system of enterprise trade unions; the substantial limitations for federations and confederations of the right to take action, including the right to call a strike; and administrative dissolutions of trade unions. Should the Committee of Experts not be able to note real progress before its next session, in particular, by the submission to and adoption by the National Congress of the Bills drafted in September 1997 and accompanying legislation, the present Committee would have to reconsider this case next year. During the Conference in 1999, the Workers' members would request that the conclusions be drafted and presented in a different way in the report. They demanded that the present conclusions reflected the concerns expressed and positions taken.

The Worker member of Ecuador indicated his full agreement with the comments of the Committee of Experts and thanked the Minister of Labour of his country for being present. For several years, observations, comments and direct requests had been addressed to the Government of Ecuador by the Committee and the supervisory bodies with a view to bringing law and practice into conformity with Convention No. 87. Following these demands, the Government had promised on several occasions to take the required measures to adopt the necessary legal reforms. Up until 1990, the comments by the Committee of Experts concerned the following legal provisions: the prohibition for civil servants to set up trade unions, to negotiate collective agreements and to go on strike; the prohibition for trade unions to involve themselves in political or religious activities; the obligation to be Ecuadorean in order to serve as a trade union official; the dissolution by administrative measures of works committees; the imposition of prison sentences on instigators of collective work stoppages and strikes; and the implicit refusal of the right to strike for federations and confederations. The fact that the Government had not honoured its undertakings caused the case of Ecuador to be referred to in special paragraphs in 1983, 1988 and 1989. For its part, the ILO had provided the assistance requested by the Government by way of conducting direct contacts missions in 1985 and 1989, and by way of providing the technical assistance mentioned by the Committee of Experts in its report. The Government had not followed up on any of the recommendations elaborated during these missions and, instead of the expected progress, new laws had been adopted which deteriorated the situation causing a questioning of the seriousness and credibility of the Government before the Conference Committee. In its report of 1991, the Government indicated that six Bills had been submitted to Congress including the Bills to amend the legislation with a view to bringing them into conformity with Convention No. 87. However, a few months after having submitted its report, the Government adopted Act No. 133 containing provisions which violated the principles of freedom of association and collective bargaining. The provisions of this law resulted in comments by the Conference Committee in 1992. More specifically, the comments concerned: the increase of the number of workers required to set up a trade union at the enterprise level which was raised from 20 to 30 (in Ecuador 60 per cent of the enterprises have less than 30 employees); the requirement that strikes be declared 20 days ahead of time; and the obligation that a minimum number of workers should continue to work in the enterprises during strike, which minimum would be determined by the Ministry of Labour should the parties not reach an agreement. This implied that in the public sector the Minister of Labour was at the same time a judge and a party.

In subsequent reports the Government indicated that it would insist that Congress follow up on the relevant draft law. During the months of January, June and July, 1996, however, the restrictions imposed on public servants for the establishment of unions and the negotiation of collective agreements and the declaration of strikes were incorporated in the Constitution. At the same time, a provision stipulating that "for industrial relations purposes in the public sector the workers will be represented by a unique trade union organization" was incorporated in the Constitution. Moreover, during September 1997, the Minister of Labour once again asked Congress to study six drafts presented in 1990 including one draft providing for the repeal of Decree No. 105 cited above. Contrary to what was stated by the Minister of Labour, Decree No. 105 was applied to trade union leaders in November 1997. Moreover, on 21 November of the same year, this Decree -- which allowed for the imposition of prison sentences in case of paralysis of activities -- was raised to the level of a constitutional provision. All these facts demonstrated the absence of the Government's political will to respect the provisions of Convention No. 87 in spite of the recommendations, comments and observations of the Conference. Instead of progress, there had been regression, in spite of the fact that the International Labour Office had invested human resources without obtaining the desired results. The Conference Committee had shown patience and unlimited tolerance and the persistence of such a situation could harm the efficiency of the supervisory machinery of the ILO. The speaker demanded that adequate measures be taken by the Government of Ecuador to modify the constitutional laws which were contradictory to the provisions of Convention No. 87.

The Worker member of Argentina stated that the report of the Committee of Experts contained a detailed analysis of the bills aimed at amending the Act on the Public Service and the Labour Code. While the Government in its report insisted that it had reactivated the procedures concerning these drafts, in November 1997 at an extraordinary session, Congress had adopted an amendment to the Constitution proscribing strikes in essential public sectors, including schools. If one added to that: the fact that public employees were not permitted to form trade unions; and that those who could have, were affected by the Act of 1991 which introduced changes to the minimum number of workers required for the formation of a trade union, the removal of permanent status from workers who engaged in solidarity strikes and the implicit negation of the exercise of the right to strike of federations and confederations, it could be seen that there have been no improvements brought about by the changes to the legislation which limits the full exercise of freedom of association. He therefore supported the legitimate calls of the workers of Ecuador and their trade union representatives.

The Worker member of the United States pointed out that Ecuador had been cited in special paragraphs by this Committee for violations of Conventions Nos. 87, 98 and 105 in 1987, 1988 and 1989 and that the ILO had sent direct contacts missions to Ecuador in 1985 and 1989. As the most recent report of the Committee of Experts indicated, another ILO mission visited Ecuador on the issue of compliance with Convention No. 87 in September 1997. If one looked at the record as a whole, violations of Convention No. 87 appeared to be continuing and the situation could even be getting worse if one considered certain aspects of the Ecuadorean labour law system. The Committee of Experts stated in its report that two legislative Bills were drafted in Ecuador in September 1997. One of the Bills would have improved the organizational rights of civil servants and given them a right to strike by amending certain sections of the Civil Service and Administrative Career Act. The second Bill would have removed the requirement of Ecuadorean citizenship for trade union leadership eligibility and would have removed individual criminal liability in cases of allegedly unlawful strikes. However, neither of these Bills had been enacted and the Committee of Experts had already expressed its surprise at the failure of the Government to even mention these proposals in a report. Moreover, in his statement to the Committee, the Government representative had not mentioned the enactment of any new legislation.

In any event, even if these two Bills were to be enacted in the near future they would still not remedy some of the most fundamental violations of freedom of association principles. More specifically, the first Bill which would have amended the Civil Service and Administrative Career Act, still maintained a very broad and vague definition of essential services where the right to strike could be prohibited. Moreover, the second Bill's amendment of section 443(11) of the Labour Code which would allow trade union organizations and leaders to peacefully express their opinions on the Government's economic and social policies but not allow them to become involved in political campaigns, would deprive workers of one of the most fundamental forms of free expression and association. Finally, the two Bills, even if enacted, would be entirely overruled by other constitutional and statutory provisions which totally undermined rights of association. For example, in November 1997, the legislative branch of the Ecuadorean Government, in an extraordinary session of Congress, passed constitutional amendments banning strikes in key public services, including schools. Moreover, article 49 of the Ecuadorean Constitution specifically prohibited strike action in the sectors of electrical energy, water, health care, processing, the transport and distribution of combustibles, education, public transport and telecommunications. In addition, nothing in the proposed legislation would directly change the 1991 law which increased the minimum number of workers legally necessary to form unions and work councils from 15 to 30. This law was obviously passed to make unionization at medium and small enterprises even more difficult. The speaker concluded by urging the Government to take due account of what had been stated in the Committee and to ensure that necessary changes were made to the Constitution and legislation to remedy all of the violations of freedom of association which had been mentioned.

The Worker member of Spain thanked the Minister for his presence and for the explanations provided. He noted that the report of the Committee of Experts suggested that draft laws were being elaborated which contained certain improvements with a view to bringing the legislation of Ecuador into conformity with Convention No. 87, but the Government made no mention of these drafts in its report. He further noted that the Government referred to other draft laws, but that it finally decided to shelve them and to adopt a draft which made the situation even worse. He stated that such an attitude was an insult to the intelligence of the members of this Committee and constituted an enormous step backwards. In conclusion he considered that a special paragraph would be appropriate in this case.

The Worker member of Colombia stated that he was deeply concerned by the serious conditions the workers in Ecuador had to face as regards freedom of association. In spite of the efforts by the Minister, it was clear that the situation remained obscure and that legislation in this country was not in conformity with the relevant ILO Conventions. Even so, it would be useful if the ILO could provide the necessary technical assistance to Ecuador to seek to halt the conditions from deteriorating in the near future. It was not appropriate in this case to maintain that legislation in Ecuador was in conformity with the Convention while at the same time referring to Bills aimed at bringing it into conformity. Such statements inevitably evoked misgivings that the Government did not have any coherent policy in this matter. The speaker stated his support of the statement by the Worker representative calling for a re-examination of this case next year.

The Worker member of France noted that the declaration by the Government member of Ecuador was not at all convincing and he still believed that there was much to be done before Convention No. 87 was fully applied in Ecuador. He emphasized that the word for strike did exist in the Constitution of Ecuador and considered that the disdainful tone used by the Ministry of Labour constituted an attack on this Committee. He considered that the declaration by the Minister demonstrated that the violations of Convention No. 87 were real and that they seemed to be becoming more serious. The ongoing privatization in Ecuador provided a rationale. Finally, while he was inclined to ask for a special paragraph concerning this case, he agreed to accept the proposal by the Workers' members requesting a discussion of this case again next year, should no progress be made.

The Government representative of Ecuador thanked the speakers who participated in the discussion. He noted that some of them had referred to the constitutional provision concerning the prohibition of the right to strike. He observed that a reading of the Constitution should be undertaken with great care: it spoke not of strikes but of the paralysis of activities and there was no reference to the right to strike. Under the division of power in Ecuador the Government exercised executive power, and, in this role, it had asked Congress, in May 1998, to consider the draft laws mentioned in the discussion to bring legislation into conformity with the Conventions concerning freedom of association. This was the obligation of the executive branch which did not have the power to legislate. Referring to the draft laws elaborated during the technical assistance mission of 1997, he stated that they had not been adopted because of the legal situation existing in Ecuador. Finally, he stated that the Government of Ecuador was ready to comply with everything that the ILO had put forward for the benefit of the workers and that there were no problems in relations between workers and employers.

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The Government has supplied the following information:

As regards the comments of the Committee of Experts concerning the increase of the minimum number of workers required for the establishment of occupational organizations (section 439 of the Labour Code), the reforms have not impaired the guarantees provided for by the Convention since the right to associate is effectively in force in this country. The Government states that, according to the information furnished by the Department of Occupational Organizations of the Ministry of Labour, 87 occupational organizations in total have been registered in the country between 21 November 1991 and 15 May 1993; there are 45 trade unions, 15 works councils, 24 associations and three federations.

As regards the decisions of the Ministry of Labour when there is disagreement between the parties on the minimum services to be provided in the event of a strike (unnumbered provision, inserted after section 503 of the Labour Code), this provision is in force since the promulgation of Act No. 133 revising the Labour Code of 21 November 1991. However, until now there has been no case where the labour authorities have had recourse to the exceptional possibility of establishing essential minimum services when a strike has been called in institutions which furnish services of public interest.

Regarding the follow-up to the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, the Government states that a request has once again been addressed to the current President of the National Congress to proceed immediately to the necessary steps concerning the adoption of these draft amendments in order to bring into full conformity Ecuadorian legislation with the international Conventions ratified by the country, by emphasizing the obligation undertaken by the Government before this Committee in June of last year. Together with the request, a file containing precedents and full information on this matter was also transmitted. A file containing documentation on the proposed draft amendments was transmitted to the chairman of the Standing Legislative Committee on Labour and Social Matters. In his response, the president of the National Congress stated that he had requested the secretariat to take the necessary steps so that the plenary sessions of the committees could deal with the said draft amendments. Finally, on this occasion, the Government reiterates its decision to bring its national legislation fully into line with the international obligations to which it has subscribed.

In addition, a Government representative, the Minister of Labour and Human Resources, first indicated that his Government had come to power only in August 1992, but that since then it had been engaged in examining the questions which were the subject of the Committee of Experts' comments. In this regard, the affair had been brought before Parliament by the communication of 27 April 1993 so that the draft laws of 1990 relating to Conventions Nos. 87, 98, 105 and 111 could be examined by the latter. In addition, the Government had drawn the attention of Parliament to the urgency of approving the above-mentioned draft laws. Concerning these drafts, he stated that the Government had done all in its power to persuade the majority of the Members of Parliament to vote in favour of the adoption of the proposed reforms, but the final result was uncertain since the Government did not have the majority in the heterogeneous Congress composed of 17 political parties. As for the question of increasing the minimum number for the establishment of a trade union to 30, he stressed, on one hand, that the same legal requirement of a minimum number of workers to form unions existed in other member States of the Andean Pact (Peru, Bolivia and Venezuela - 20, and Colombia - 25) and, on the other hand, that this Convention did not specify a minimum number in this regard. In any case, unions continued to be formed normally since the legislative reform of 1991; a total of 87 unions had been legally established between November 1991 and 15 May 1993. The Committee of Experts considered, however, that the minimum number of 30 workers, which could be admissible in the case of sectoral trade unions, should be reduced for enterprise unions. The Government found this suggestion problematic and had not studied it because it would not be easy to determine what were sectoral trade unions and enterprise unions. Regarding minimum services in the event of a strike, the Government recalled that the legislative reform of 1991 had established a procedure on this matter and that the subject of the above comments was this procedure and not the minimum of 20 per cent of workers required for such services. He specified that the above procedure consisted of the obligation on the parties concerned to agree, during the 48 hours after notice of the strike to the employer, upon the modalities of minimum services in the services considered to be essential, and in the absence of agreement, of the fixation of such modalities by the President of the Conciliation and Arbitration Tribunal, a tripartite organ, since the President was the Director or Sub-director of Labour. The Government did not understand why the ILO's supervisory bodies could object to the establishment of this procedure while it recognized the right to ban or to limit strikes in essential public services. In practice, the power in question had not been exercised since the entry into force of the revision of the Labour Code, to establish the modalities of minimum services by the intermediary of the authorities. He reiterated the determination of his Government to find solutions for the problems raised by the Committee of Experts.

The Workers' members remarked on the length of time during which the case had been outstanding and the similarity of the Government's statement to that made in 1992 and expressed doubt about the Government's intention to make the necessary changes. As for the minimum number of workers for the establishment of trade unions, they stated it was not for the Government to try and avoid multiplicity of unions. Regarding minimum services in the event of a strike, the relevant legislation concerning the independent body that determined such services should be examined by the Committee of Experts. They were disappointed to see no positive action taken in view of all the discrepancies between the national legislation and the Convention. They requested that copies of the draft laws mentioned by the Government be sent to the Office.

The Employers' members remarked that the Convention did not set forth criteria on the minimum number of workers for the establishment of trade unions or of works councils, and that the principle should be the freedom of association. Concerning strikes, they considered that the Committee of Experts' comments on the relation between Article 8, paragraphs 1 and 2, of the Convention needed more nuance. They welcomed the Committee of Experts' recognition of possibilities of restricting or prohibiting strikes in essential services which, in their opinion, should be determined by social partners or an appropriate forum of the country. They agreed with the statement of the Workers' members' that various discrepancies existed and hoped for a detailed report from the Government for examination by the Committee of Experts.

The Workers' member of France wondered about the aim of setting a minimum number of workers for establishing trade unions. He considered that the requirement of minimum percentage of essential services hindered the right to strike, and expressed doubt about the Government's intention for changes.

The Workers' member of Greece recalled that the amendments to the Labour Code by Act No. 133 had been considered by the Workers' member of Ecuador at the 1992 Committee as a step backwards. He requested precisions on the reform concerning the five points raised by the Committee of Experts.

The Workers' member of Colombia pointed out the danger of leaving the definition of essential services unspecified in the legislation and thus to the discretion of the Government. He wanted further information on the precise contents of the draft legislation.

The Government representative provided some additional information on certain points raised by the Committee of Experts. He emphasized the right of the workers in the public sector to form and join trade unions of their own choosing, as well as to negotiate freely. His Government only made limitations on certain exaggerated aspirations which would have the consequence of reducing the financial resources of the State entities so that they would no longer be in a position to discharge their functions of public service. However, it had never been the case of interference in the right of workers to organize freely and to bargain collectively. Another aspect was the penalty of imprisonment for the instigators of collective work stoppages and illegal strikes, i.e. when public services were totally stopped. As to the requirement that members of the executive committees of works councils be Ecuadorian, he specified that this traditional requirement in Ecuador could be derogated when a situation of reciprocity existed with another country. Concerning the dissolution of works councils, section 461 of the Labour Code concerned only the cases of works councils whose membership dropped below 25 per cent of the total number of workers. In the other cases, only a judicial decision could dissolve a union. He stated that his Government had so far not dissolved any works council administratively and that the proposed reforms covered this subject. Trade unions that consisted of fewer than 30 members but more than 15 as required by the previous legislation could continue exercising their activities, since the new Act was not retroactive. Regarding the prohibition on unions from taking part in religious or political activities, this prohibition was meant to guarantee the freedom of political opinion and of religion, namely that the workers should not be obliged to share a political opinion or a belief in order to affiliate to a trade union or to exercise union activities. Otherwise, trade unions were not prohibited from expressing themselves on points of general politics. He reaffirmed his Government's commitment to resolving the outstanding problems and emphasized the Government's efforts to have the draft laws, which were elaborated with the assistance of an expert mission from the ILO, approved by Parliament. In this regard, the Government wished to count on the support of Ecuadorian workers. He stressed that all the relevant information and the draft texts proposed since 1990 had been communicated to the ILO.

The Workers' member of Ecuador stated that the draft laws to follow up the comments of the Committee of Experts were still with the Congress and that the trade unions supported any law that was favourable to the situation of workers. He further added that Law No. 133 had been challenged as unconstitutional in court. Finally, he requested that measures be taken to remove obstacles in the formation of trade unions. These obstacles were caused by some officials and their bias in conflict during social conflicts.

See also under Convention No. 105, as follows:

The Government has communicated the following information:

The Minister for Labour and Human Resources has proceeded to carry out the appropriate steps before the National Congress, which is responsible for discussing the draft reforms of the law which were prepared in 1989, to take note and approve of these reforms. The Government has sent a copy of the official letter No. 02-AIT-93 of 13 April 1993 that the Minister of Labour and Human Resources has addressed to the President of the National Congress and in which he requests that the constitutional procedures be engaged with respect to the following bills:

-- II-90-154 to interpret Legislative Decree No. 105 of 7 June 1967, published in the Official Register No. 161 of 3 July 1967, respecting collective work stoppages.

-- II-90-156, containing reforms of sections 443(11), section 455(4), section 456 and section 43(f) of the Labour Code;

-- II-90-157, to amend various provisions of the Commercial Code;

-- II-90-158, to repeal section 165 of the Maritime Police Code;

-- II-90-159, to amend section 11 of the Co-operatives Act;

-- II-90-160, to interpret the provisions of sections 53, 54, 55 and 56 of the Penal Code, and section 22 of the Code on the Execution of Penalties and Social Rehabilitation, with respect to forced labour.

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The Government has communicated the following information:

With regard to the observations of the Committee of Experts, the Government emphasises that the amendments in the Labour Code which were introduced by Act No. 133 were the result of important discussions and debates at the national level. The Act in question updates the Labour Code of 1938 and responds to the needs of contemporary economic and commercial reality without losing sight of the intangibility of the guarantees on labour matters contained in international Conventions.

Act No. 133 constitutes important progress in the protection of workers' interests. In order to approach professional relations more seriously and to guarantee a right of appeal to workers to claim their rights in the event of a loss of their source of income, the Act also introduces in the legislation two new bases for a strike (section 63(6) and (7)), and it increases the fines imposed in general on employers when they violate the provisions of the law which protects workers.

The opinions expressed during previous meetings with representatives of chambers of commerce and with workers' organisations were taken into consideration during the drawing up of reforms of the legislation.

Within the National Assembly, the Commission for Labour and Social Affairs is responsible for initiating the constitutional procedure provided for reform drafts which are proposed by the executive as well as for the propositions made to this organ by the United Workers' Front and the Ecuadorian Confederation of Class Organisations.

The goal of the reforms is to establish a balanced and equitable instrument to regulate professional relations to the extent that these reforms aim to correct defective procedures, make the exercise of the right of appeal quick and flexible, and improve the degree of individual protection of workers.

The increase in the minimum number of workers necessary to form trade unions (sections 53 and 55 of Act No. 133)

The Government is of the view that the exercise of the right to form trade unions is not hampered by sections 53 and 55 of Act No. 133 which increases the minimum number of workers to form trade unions. Indeed, the first paragraph of Article 8 of Convention No. 87 stipulates that in exercising the rights provided for in the Convention workers shall respect the law of the land. Consequently, this international instrument confers on each country the authority to determine, in the light of national realities, the necessary number of workers. It is precisely the economic, productive and social realities prevailing in Ecuador that have made it necessary to revise the minimum number of workers needed to form trade unions; the old rule was adopted in 1938, at a time when the industrial and professional development was still entirely in its initial stage. Today, the country is undergoing a process of economic, industrial and customs union at the regional and subregional levels. As of 30 April 1992, 41 workers' organisations had been established in virtue of Act No. 133. It is equally important to underline that the legislator has paid particular attention to the protection of acquired rights and to the legal personality of organisations established prior to the entry into force of the said Act. To this end, a transitional provision has been incorporated into the Act.

The decision of the Minister of Labour concerning minimum services in the event of a strike (section 69 of Act No. 133)

The legislator is of the view that the Government has the fundamental obligation to look after the functioning of minimum services in the event of a strike in institutions which provide services which are essential to the social or public interest. This is not a rule which applies generally, but rather is a provision of an exceptional nature, which is applicable to institutions which provide essential services in the social or public interest. Within this narrow scope of application, the provision in question applies only in case of a disagreement between the parties. It should be pointed out as an antecedent that since 1991 the country has suffered terribly from the effects of a serious cholera epidemic. Due to this fact, it was indispensable that hospital and health services, particularly those situated in rural zones lacking in sanitary facilities, continue to function. However, in these circumstances, national and regional strikes were called by workers in the health sector which completely paralysed the medical services. This situation not only led to the death of persons affected by cholera because they had not received the necessary medical care but also put parts of the population deprived of this essential public service in great danger. Any society, and especially one which is on the brink of poverty, has without any doubt a fundamental obligation to maintain the right of its citizens to life and to health. Confronted with this reality, the Government was obliged to adopt, without however hampering the right to strike or other actions with similar claims, adequate measures in order to ensure a minimum guarantee for the running of essential services. These measures apply once the period of time provided for in the law has run out and the parties are still not able to agree on the maintenance of these services.

Drafts of amendments to labour legislation

In the context of the commitment made by the Government towards the International Labour Organisation, the Minister of Labour took many steps within the National Assembly to include in the reforms drawn up by this organ in labour matters, the examination of draft modifications and of legislative interpretations of provisions which were the object of observations by the Committee of Experts. In the light of this commitment and considering that it is in the interest of the Government to regularise the application of ratified international Conventions, the Minister of Labour, in his communication No. DM-900116 of 18 April 1991, asked the President of the Assembly to initiate the constitutional procedure regarding the draft legislation which was submitted to this legislative body on 22 May 1990. Following this, in a communication No. AIT-91102 of 19 July 1991, the Ministry of Labour asked the Vice-President of the Commission for Labour and Social Affairs of the Assembly to proceed in the examination of reforms of the Labour Code. Finally, in a communication No. AIT-91117 of 12 August 1991, the Minister of Labour himself addressed the Vice-President of the said Commission and immediately asked it to advance in the examination and the adoption of the legislative reforms introduced on 22 May 1990. Under these conditions, the Government reiterates its intention to continue asking the competent authorities of the National Assembly to examine and approve the draft legislation, the end result of which will be determined by this legislative organ.

The Government has enclosed a copy of the communications mentioned in its report.

In addition, a Government representative, the Minister of Labour and Human Resources, supplied information on the efforts made by his Government to revise the country's labour legislation. Recalling that, in November 1989, at the request of President Dr. Rodrigo Borja, the ILO had undertaken a consultative mission to Ecuador to examine, among others, issues relating to the application of the Convention; draft legislation which took into account the suggestion made by the ILO mission had been presented to Congress. As of this time the draft legislation had not been adopted into law. Noting that communications had been sent to the President of Congress in April 1991 and the President of the Labour Law Committee in July 1991, he regretted that in spite of the close relations of these persons with trade union activists, no action had been taken on the draft legislation, leaving unresolved certain questions of application raised by the Committee of Experts. The speaker invited the Workers' members of his country to join with the Government in its efforts to adopt the draft legislation before the closing of the present legislative session in August 1992. As concerned the specific points raised by the Committee of Experts in its observation on the problems in applying Act No. 133 of 1991 to reform the Labour Code, in relation to the Convention, the speaker referred to the context of this reform. The reform had been made after a significant period of consultation with workers' and employers' organisations, consultations which had never taken place before in the history of constitutional democracy in Ecuador. Act No. 133 brought many improvements for workers; unfortunately, the Committee of Experts' observations took up only two points. Act No. 133 did not violate the explicit provisions of the Convention. The Convention did not stipulate a permissible minimum number of persons for establishing a workers' organisation, a level suggested to be between 20 and 30 workers. Changes in economic and social conditions of his country had obliged an amendment of the Labour Code of 1938, increasing the required minimum of 15 workers to 30. The speaker recalled the comments recently made by the President of the Republic of Zambia to the Conference that efforts should be made to ensure that legislation does not hamper business activity, as well as the offer of the Director-General of the ILO to provide technical assistance to countries seeking to make labour legislation more flexible in the light of new social and economic conditions. The Government had introduced elements of flexibility in its labour legislation and was going to examine the practical results of Act No. 133; in the six months it had been in force, 41 workers' organisations had been registered and the frequency of labour disputes had dropped. As concerns the decision of the Ministry of Labour, in the event of disagreement between the parties, on the level of minimum services to be maintained in the event of a strike in services that are considered to be essential - referred to by the Committee of Experts in its observation - the speaker expressed the view that strikes in essential services, particularly hospitals, had produced desperate situations for local populations. The regulation of strikes had to be considered in a broad social context, both by governments as well as by trade unions. In any case, under Act No. 133, the number of cases in which a strike could be called had been extended. In conclusion, he emphasised the need to revise the labour legislation in such a way as to meet the principal preoccupation of government: unemployment and underemployment. As unemployment had been a priority issue for government, measures had to be taken to encourage creation of enterprises.

The Workers' members were deeply disappointed that the Government did not take advantage of the opportunity offered by the adoption of Act No. 133 in order to put its legislation in conformity with the Convention as well as to implement the points contained in the comments of the Committee of Experts over the last several years. This was all the more so because of the fact that this case had been previously discussed on several occasions, that two ILO missions had visited Ecuador (1986-89) during which the Government had taken on certain undertakings, and that special paragraphs were included in the Committee's reports to the Conference in 1988 and 1989. Despite the fact that the Committee of Experts made, at least on one occasion, a positive comment about Act No. 133 (an increase in the number of justifications for going on strike) they considered this Act raised previously non-existing problems. In conclusion, they noted that unfortunately nothing had changed regarding the serious violations raised for a number of years by the Committee of Experts. Act No. 133 could very well be a ploy on the part of the Government to avoid making basic changes in the Labour Code by amending only certain articles and thus claiming to fulfil the requests of this Committee. The Government had stated, however, that the basic changes requested by the Committee of Experts had only been submitted to the National Congress by one of its members. It seemed to them, therefore, that the fate of the trade union movement had become the task of an individual member of Congress and regretted to note the decline in the State's responsibilities in this area. They considered, therefore, that the serious problems of the application of the Convention remain unchanged: the prohibition placed on public servants from setting up trade unions, the intolerable interference by the Government in the internal administration of trade unions as well as on matters touching on the very existence of the trade union movement, the Government's negative attitude about freedom of association and the dynamic role that trade unionism could play in the economy and in the development of the country, the increase of the minimum number of workers required for the establishment of trade union associations. In fact the Convention does not specify any such number and it was evident that the increase in the minimum number required tended to diminish, in reality, the possibilities of workers to create trade union organisations as well as their power to defend their interest. The Workers' members strongly urged the Government to be more active in ending, as soon as possible, the long-standing problems raised and thus fully implement in practice the provisions of the Convention.

The Employers' members referred to the three points raised by the Committee of Experts regarding Act No. 133. They did not wish to make further comment on the extension of the number of cases in which a strike can be called, as this aspect of the Act had not been criticised by the Committee of Experts. They recalled, however, that the Experts considered problems could arise regarding the other two aspects of the Act (the increase in the minimum number of workers required for the establishment of trade union associations and the decision by the Ministry of Labour, in the event of disagreement between the parties, on the minimum services to be maintained in the event of a strike). Apparently the Experts were not sure on this point and the Workers' members expressed the same doubts as well. Although a good number of countries did require a minimum number of workers for the establishment of trade unions, the Employers were of the view that it was not necessary to fix such a minimum number. As the Convention was silent on this question they felt that it should be the practice in reality that should resolve the question. The Experts considered the minimum number established in the Ecuadorian legislation (the figure was increased from 15 to 30) to be a dubious one. The Employers' members did not wish to pursue this point because, as already stated, they felt it was the practice in reality that should provide solutions. As regards the decisions made by the Ministry of Labour, in the event of disagreement between the parties on the minimum services to be maintained in the event of a strike, the Employers' members considered that it was necessary to maintain emergency services. A decision should rapidly be made in the event that the parties failed to agree on the definition of such services. In their opinion, this decision should be made by the employer and that such decision could successfully withstand legal challenges. They considered medical services to be part of essential services that should not be interrupted and for which the minimum requirements should be clearly established. The Experts required other changes regarding the five points discussed previously by the Conference Committee. The Employers' members considered these points to have varying degrees of importance. With regard to the penalties for strikes they assumed this referred to illegal strikes. In view of the fact that this Committee was not aware of the clear definition of an illegal strike in the country, they felt this question should be left pending for the time being. With regard to the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers, they considered that the Convention did not contain specific provisions on this point. In such a case they considered that the general principle that, on such matters, freedom, understood in the widest sense possible, should apply and that practice in reality should resolve the details of its application. The other points, namely, the prohibition placed on public servants from setting up trade unions, the requirement that members of the executive committees of a works council be Ecuadorian, as well as the prohibition placed on unions from taking part in religious or political activities, were, in their view, unjustified interferences in the exercise of freedom of association. With regard to the four drafts presented to the National Congress by one of its members referred to in the report of the Committee of Experts, the Employers' members requested the Government's representative to provide information on the content of these amendments as well as on the prospects for their adoption. Considering that it was up to the Government, in the end, to take appropriate measures regarding the criticisms made, they requested for all useful information in this respect.

A Workers' member of the United States, on behalf of the Workers' members, regretted the fact that this was a long-standing problem in need of remedial action. He was all the more concerned because of the absence of information from the Government representative on the results of the 1986 direct contacts mission. Six years after this mission, the situation remained unchanged. The exasperation of the Workers finally led the Workers to insist on, and obtain, a lengthy special paragraph in the report on the question. He requested the Government representative to indicate to this Committee which recommendations of the direct contacts mission received follow up in order to initiate the badly needed reforms and which ones did not, and the reasons for such failure.

The Workers' member of Ecuador deplored the fact that the changes to the Labour Code introduced by Act No. 133 of 1991 signified a step backwards of 50 years in the area of freedom of association, collective bargaining and the right to strike and that the Government had taken no measures to go ahead with the adoption in Parliament of the draft legislation prepared with the ILO's technical assistance and which concerned four of the points raised by the Committee of Experts for many years. Regarding the establishment of trade unions and, specifically, the increase of the minimum number of workers (from 15 to 30) included in Act No. 133, the Government had justified this provision in the press by stating that it was aimed at increasing employment, and that if trade unions were to be restricted to enterprises with more than 30 workers, more small enterprises would be created. This was a violation of the Convention, especially when account was taken of the fact that most undertakings in Ecuador did not have the above-mentioned minimum legal number of employees. In addition, attainment of this minimum number might be easily frustrated, lost by the dismissal of members, since all that was needed for dismissal was the simple payment of compensation. In addition, the creation of trade unions faced obstacles in the Ministry of Labour which, in many cases and repeatedly, returned the trade union constitutions without having registered them because of minor problems with formalities such as the omission of a word, full stop or comma, thus violating the legislation. In relation to the prohibition on public servants from setting up trade unions, the President of the Republic had stated in the press that unionism in the public sector was the shortest road to the dissolution of the State; this concept inspired the Government's policy on trade unionism. Public servants could also not bargain collectively or sign collective agreements. In addition, section 73 of the Armed Forces Act denied civilian employees in undertakings attached to the armed forces the right to form trade union organisations. He also criticised the regulation of minimum services to be provided in the event of a strike in essential services as set out in Act No. 133. The range of public and private activities which do not correspond to "essential services": minimum services must be maintained with at least 20 per cent of the workers and, when the parties did not agree on the number of workers required to guarantee that service, the Ministry of Labour decided the matter. This was the case in the public sector as well, where the State was both judge and petitioner. If the workers did not accept the minimum service decided by the Ministry, they could be dismissed and new workers could be recruited, including those subject to civil liability. He criticised the provisions of Act No. 133 concerning the need to establish a sole central committee representing 50 per cent of the workers in a company, undertaking or industry of the public sector so as to be able to bargain collectively. Such a committee in fact replaced unions and disappeared once a collective agreement was signed, thus making any follow-up on the agreement impossible. Moreover, the required percentage of 50 per cent for negotiation could be very difficult to attain. In concluding, he recalled that the case had been discussed for many years and supported the Committee of Experts' observations; he hoped that the Committee of Experts would examine the points to which he had referred.

The Employers' member of Ecuador stated that the intervention of the Workers' member of Ecuador was highly exaggerated and gave a picture which did not correspond at all to the situation existing in the country. He deplored the fact that the trade union organisations had not wanted to take part in the first stage of the work on revision of the Labour Code and had participated in an unsatisfactory manner in the subsequent phase. He regretted that the questions were being interpreted out of context and that there had been no mention of the labour victories gained through Act No. 133: increase in compensation for unjustified dismissal; possibility for unions to intervene as parties in judicial proceedings where the State had lodged a petition against an undertaking; possibility to exercise the right to strike during collective bargaining; creation of a tripartite minimum wages council; abolition of the low level of protection against dismissal for workers having permanent contracts. As for the right to unionise in the public sector, a restrictive standard did exist, but only in theory - and statements of the President of the Republic had explained this - because most public servants in Ecuador had enjoyed this right since the revision of section 125 of the Constitution in 1978. Trade unions existed in municipalities, in the petroleum sector, in the electricity sector, etc., and for this reason Act No. 133 regulated the minimum services to be maintained in the case of a strike. This was because, in such essential services, the community had a more valuable interest than that which trade union leaders wished to impose - although it was also valuable - and the country could not for that reason be at their mercy. The increase in the minimum number of workers for the establishment of a trade union contained an implicit reference to informality in a context where undertakings faced many restrictions. A choice had had to be made between rigid legislation and a flexible, sensible and prudent legality in which all factors were present. Finally, he indicated that the minimum services to be maintained in the case of a strike met the requirements of equality in labour relations and in the exercise of the rights of all parties. Trade union organisations had on many occasions signed clauses concerning minimum services.

A Workers' member of France noted that statements made by the Employers' member of Ecuador would make one believe that the situation was satisfactory and the serious criticisms made by the Experts in their report should be overlooked. The statement did not include new points that would eliminate the need to amend the provisions prohibiting civil servants to form unions and the impediments on freedom of association. In addition the efforts made by an Employers' member to convince this Committee that it would be possible to put Ecuador in the hands of workers, despite the numerous obstacles contained in the laws, was beyond him. Taking into account the need to insist upon the changes requested by the Committee of Experts he expressed his expectation that the Government would do everything possible to change the laws along the lines suggested by the Committee of Experts and that the Ecuadorian employers would in future respect not only the laws but the workers in the country.

The Workers' member of Ecuador stated that the trade union organisations had sent their suggestions in writing to the Government concerning the reform of the Labour Code and that the Government had not retained them. Given the differences of opinion between the members of this Committee, he asked that an ILO mission visit Ecuador so as to obtain information on the application of the Convention.

A Workers' member of Colombia deplored the fact that the Employers' member of Ecuador considered the informal economy as the panacea of Latin America and sought justification for the disappearance of the trade union movement. The problems proposed by the savage capitalist model had to be looked at jointly in Latin America. Since there had been no reply given to the points raised by the Workers' member of Ecuador, the Committee of Experts would have to examine them next year.

A Workers' member of Pakistan pointed out that the right to organise, recognised in the Convention, was equally pertinent to workers and employers. He appealed to the Employers to show concern in this case even if it only involved the right of workers to organise because the power of the Government to dissolve such organisations could be also applicable to them. In his view, trade unions always put their communities' interests ahead of their own. He expressed the hope that the national legislation in Ecuador would soon be put into full conformity with the requirements of the Convention.

The Workers' member of the United Kingdom, on behalf of the Workers' members, expressed his doubts about the reassurances given by the Government representative that his Government did not wish to restrict the right of workers to organise. Workers in public enterprises such as electrical and oil companies were granted certain rights while employees of the state administration were still deprived of their right to organise. He was particularly concerned about civil servants in Ecuador who were denied the right to organise under the law of that country. The Convention clearly recognised their rights in this respect: he referred to the countless examples of civil service unions throughout the world. If civil service unions had not existed a number of leading members on the Workers' bench on the Committee would not have appeared and taken part in the work of the Committee. They recognised the right to strike had in recent years been queried by some employers as not being integral to the Convention but this Committee and the Committee of Experts had reaffirmed this right. Unless the Government representative could offer clarifications on the concerns addressed by this Committee and unless the Government could assure the Committee that his country will soon be in full conformity with this Convention they would be urging that this Committee re-examine the case next year. In the event that no progress is reported next year, they would be requesting that the matter be dealt with in a special paragraph in the Committee's report.

The Government representative regretted the attitude of certain Workers' members and, in particular, of the Workers' member of Ecuador whose tergiversation prevented any advance and had repercussions on the internal politics of the country. An example of this tergiversation was that Act No. 133 implied a step backwards of 50 years because it allegedly removed all the labour victories contained in existing law. He recalled in this respect that the trade union organisations had at the outset rejected participation in the process for reform of the Code and that, despite this, he had met with the trade union leaders - including the Workers' member of Ecuador - and managed to arrive at an agreement which settled eight or ten basic questions. It also had to be pointed out that under the present system 400 new trade union organisations had been established. He stated that he was willing to defend, together with the parties who so wished, the revision drafts which had been prepared with ILO assistance. He read them out to the Committee. He also recalled that the Member of Parliament who introduced these drafts in Parliament had done so at the request of the Government. Finally, he pointed out that the trade union organisations were involved in the noble fight for better conditions, but should not lose sight of the circumstances necessary for efficiency in public and private enterprises.

The Employers' members considered that this dialogue was necessary in view of the fact that the last time the Government spoke to this Committee was three years ago. The discussions, in their view, went beyond the points contained in the report of the Committee of Experts and they thought it was not appropriate to go into the details. Both the report of the Committee of Experts and the statement of the Minister referred to the positive changes made but they thought other changes were still needed. The Employers' members hoped that the Government would be able, as soon as possible, to provide this Committee and the Committee of Experts with a detailed written report in this respect. They urged that the Committee's conclusions concentrate on the large areas of agreement between the Workers and Employers regarding these suggestions.

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A Government representative referred to the fact that in accordance with Ecuador's democratic traditions a new Government had been elected in early 1988, and had taken office in August 1988. The new Government had studied the observations which had been formulated by the supervisory bodies of the ILO in previous years. It wanted to satisfy all of the requests which were reasonably compatible with the national interest. Consequently, three legislative decrees had been sent to Congress, all of which were designed to deal with matters raised by the ILO. The President of the Republic had also approved an Executive Decree which was intended to achieve the same objective.

One of the draft decrees consisted of an interpretation of Decree No. 105 of 7 June 1967 concerning,collective work stoppages. This new decree makes it clear that the 1967 measure does not apply in any way to collective stoppages at work, and that it did not prohibit workers the exercise of their rights to strike or organise - both of which were guaranteed by the Constitution of Ecuador.

Turning to the other comments of the Committee of Experts, the speaker indicated that public servants did have the right to associate and freely to elect their representatives. Their associations were not called trade unions, but they did exist.

It was logical that the members of the executive committees of works councils should be of Ecuadorian nationality. It was also logical that works councils should be dissolved if their membership fell below 25 per cent of the total number of workers at the workplace,because in such circumstances it would no longer be representative of the workers. Studies were under way in order to finalise the Government's positions on these matters.

The proposals which were put forward by the direct contacts mission in 1985 should be examined cautiously. It was especially difficult to criticise the legislative provisions which prohibited the religious or political activities by trade unions. These provisions had profound systemic and organic meaning in Ecuador. They had emerged out of intense political and religious struggles which had bloodied the country for many years: The Government did not wish to see this situation recur in the future. The Constitution permitted full political and religious freedom. Trade unionists were free to worship in their churches, and to fight politically within their parties. However, it was necessary to keep both religion and politics out of trade union affairs. The Government hoped that the present Committee and the Committee of Experts would respect national sensibilities in relation to this matter.

Referring to the comments of the Committee of Experts on the need for legislation protecting workers against anti-union discrimination at the time of recruitment, his Government did not understand what this observation meant. He referred to various provisions of the Labour Code which were intended to protect workers in various contexts. He called upon the Committee of Experts to indicate precisely what changes they wanted to see implemented in this area.

Turning to the comments sent to the Committee of Experts by the Ecuatorian Confederation of Class Organisations (CEDOC), he stated that comments sent on 22 January 1988 had nothing to do with the present Government. It was inopportune, therefore, for the Committee of Experts to refer to these comments in their report. If CEDOC believed that their comments were still relevant this organisation should indicate which cases they wished to denounce.

In relation to the delegation to officials of a lower category of the power to refuse to register workers' organisations, he pointed out that there had to be some delegation of authority in a complex administration. The Constitution provided that the different ministries should deal with different topics. The Labour Code expressly empowered the Labour Directorate to deal with a range of issues including occupational health and safety, minimum wages, social services and labour organisation. It followed that there was nothing improper in the fact that officials in the Directorate dealt with matters pertaining to labour organisations.

The Worker member of the United Kingdom thanked the Government representative for his detailed statement on the state of the law and on the legislative changes envisaged. He declared, nevertheless, that it would have been more helpful if this information could have been provided to the Committee of Experts.

The Committee of Experts had said that since 1985 there had been no indication that the Government had taken any measures to implement the proposals made to the Government by the direct contacts mission. The Government representative said that he looked to the present Committee for advice. All the necessary advice was contained in the report of the mission, which had been agreed with the Ministry of Labour in the country. The present Committee wanted the Government to indicate that it intended to make these changes as soon as possible. The speaker observed that the Government representative said that public servants had the right to organise and to elect their representatives. However, this did not grant to civil servants a right to form or join the union of their choice in full freedom. He asked the Government representative to give an assurance, and to provide evidence to the Committee of Experts to the effect that public servants would be allowed to join unions of their own choosing, and that they would be treated in no way differently from other workers in this regard.

The Workers' members said that in 1985 a direct contacts mission had taken place because of problems which had been observed in previous years in relation to trade union freedoms as embodied in this Convention. They had hoped that after the direct contacts mission they would see appropriate changes to the legislation - for example, in relation to the right to organise public servants and the administrative dissolution of trade unions. The present Committee had waited for two years after the mission in order to see what would happen. By 1987 nothing had happened, and the report of the present Committee for that year contained a long special paragraph relating to Conventions Nos. 87 and 105. The Workers' members had hoped that they would see real change - especially after lengthy discussions in the Committee, involving the Vice-Minister of Labour. Yet today, the present Committee was faced with exactly the same situation. The Workers' members had heard a speech which contained vague promises, but still nothing had been done. They considered that this lack of progress over many years suggested to the Committee a case of continued default in application of the Convention. The Workers' members expressed their hope to hear more positive responses from the Government. They expressed the hope that the discussion would elicit more concrete proposals from the Government representative.

The Employers' members agreed that there had been no progress in this case, and perhaps there had even been movement in the opposite direction. They noted that the Committee of Experts had dealt with six problems areas. The Government representative had not addressed any of them, nor had he indicated that any changes were going to be made in relation to them. A direct contacts mission had taken place in 1985. It had suggested appropriate legislation solutions. It now appeared that these were not being considered in any realistic way. The present Committee now finds itself in the same position as in 1987 and 1988. The Government, in fact, showed no real will to correct any of the deficiencies that had been identified. It talked in terms of incursions upon national sovereignty; when it ratified an ILO Convention, it undertook an obligation to meet the requirements of that Convention. That had not been done in this case.

The Government member of Venezuela felt that it was important to take account of the democratic context of the country. It had a long democratic tradition, and there was undeniably an atmosphere of freedom. Some of the cases with which the present Committee had to deal were far more serious than this one. He understood the Committee's impatience because of the delay in implementing the recommendations of the direct contacts mission. However, it was necessary to bear in mind that there was a new Government in Ecuador, and that it was important to try to maintain dialogue with that Government.

The Workers' members put five specific questions to the Government representative: (1) Did the draft legislation exist in written form? (2) Where had the draft texts been presented within the country? (3) Had the texts been sent to the ILO for scrutiny by the Committee of Experts? Was the Government going to do so? (4) Did the draft laws respond to the proposals formulated by the direct contacts mission to bring the law into full conformity with the Convention? (5) Did the draft laws respond to the specific comments which had been made over a number of years and which were repeated in the report of the Committee of Experts this year?

These were precise questions and if the Government was able to provide precise answers then it would be possible to continue a dialogue.

The Government representative indicated that the draft decrees had been submitted by the President of the Republic to the relevant legislative body - that is the Congress - for proclamation as a law. The Executive Decree had been sent, with presidential endorsement, to the relevant minister in charge of implementation. He had the relevant texts with him, and would immediately hand them to the Secretariat.

The Workers' members noted that this constituted a partial reply to their question. The Government representative had not indicated whether the text corresponded with those agreed with the direct contacts mission. Since there was a formal promise to submit the documents to the Secretariat for examination by the Committee of Experts, they were prepared to be patient for one more year. They believed that the Committee's observations should be contained in a special paragraph, but there should not be any reference to continued default in application of the Convention.

The Workers' members proposed that the conclusions should be included in a special paragraph.

The Employers' members expressed some hesitation at the use of a special paragraph because there had been one small step taken in good faith to resolve the situation.

The Workers' members pointed out that special paragraphs were not used to condemn governments, but rather to show that the Committee had discussed an important issue. Furthermore, there had been a special paragraph in 1987. It would have been possible to have gone further on this occasion. but the Workers' members noted that there was some hope that the draft legislation would contain satisfactory responses. This should be reflected in the conclusions.

The Employers' members agreed to the Workers' proposal subject to this reformulation.

The Government member of Venezuela was concerned that a number of more serious cases of violations were not being recorded in a special paragraph; in the present report of the Committee, one might be led to conclude that the Committee applied dual standards in dealing with cases before it.

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A Government representative wished to recall that a new administration was to assume power on 10 August 1988; it would be up to this new Government to take decisions in relation to the matters being addressed by the present Committee. He asserted that there was full freedom of association in Ecuador, as guaranteed by its Constitution and labour laws, in accordance with the provisions of the Convention. For many years now, the ILO had been informed of this; he stressed that the Labour Code predated the adoption of the present Convention by ten years, and that it incorporated the ideals promoted by the Convention. He stated that in Ecuador the provisions of Convention No. 87 were applied on an active and intensive basis in everyday life; the Convention was not a mere legal fiction, but rather a tool in daily use. He said that the Government had encouraged dialogue between labour and management, promoted the conclusion of collective agreements as the proper instrument for governing labour relations and speeded up wage-fixing procedures, all of which showed trust in the effectiveness and usefulness of trade unionism. In the past eight months, 157 labour organisations had been registered, which showed that the current Government's term (1984 to 1988) had been a period of labour harmony. This was true in spite of the picture painted by some in paying attention to so-called general "stoppages" which involved no labour demands whatsoever and which the Government had felt obliged to carefully control in order to avoid vandalism and to ensure the protection of the country's citizens. The Government representative indicated that the situation could be improved and that the Government was open to taking account of the observations made by the Committee of Experts in relation to the present Convention, without implying any compromise of the country's independence or national sovereignty or of the uppermost interests of the people, such as public peace, internal order and security from outside threats. Reasonable observations would be given full attention. The Government representative enumerated the observations made by the Committee of Experts and called attention to the fact that although the Committee had referred to the Government's reply to the first four points of the observation, it had not indicated whether the reply was sufficient or not, since the Executive Branch had not been able to exercise its right to put legislative proposals before Congress meaning that these four points had not been definitively resolved. Now the current Government found itself in the situation that these matters were in the hands of the recently elected Government which would be exercising power within a few weeks. Finally, in regard to the observation on the need to have provisions guaranteeing protection against acts of anti-union discrimination at the time of recruitment, his Government believed the Committee of Experts had to clarify its position so as to state what they were really asking. In the Government's view, the legislation in force was effective and more than sufficient, since if a contract of employment contained any clause contrary to freedom of association, it would be null and void; moreover, if anti-union acts took an extreme turn, the matter would be dealt with in the penal sphere because a violation of constitutional rights would be involved. The Government representative concluded by saying that Ecuador was fully complying with all provisions of the Convention and that the Government had taken into account the Committee of Experts' observations with the intention of translating them into practice within the possibilities and means of the internal legal order.

The Workers' members saw many contradictions in the Government representative's statements: the Government recognised that changes were needed, yet everything was in order; the Committee of Experts had not clearly explained what the Government needed to do, yet the representative had quoted from the list of shortcomings set forth in the observation. In short, nothing had been done. Direct contacts had taken place in 1980 and 1985, leading to recommendations, but unfortunately no progress had been made. While it was true that free trade unions existed in Ecuador, those very unions had pointed out the need for legislative changes. The Government was interfering in trade union affairs and this was impermissible under the Convention. Public officials were denied the right to establish trade unions, a nationality requirement was applied to trade union leadership, works councils could be automatically dissolved if membership fell below a certain level, and collective work stoppages could be punished by imprisonment. The Government's argument that all of this was necessary in the interests of order, security and protection of the population was simply unacceptable. In the years since the last direct contacts, the Government had done nothing to ensure conformity with the Convention. Now that a new administration was coming in, the Committee ran the risk of facing the same lack of progress next year.

The Worker member of Ecuador declared his solid support for the statement made by the Workers' members. He also thought that the Government's statement was full of contradictions, which did not help in finding a solution to the problems of divergencies in relation to the Convention. The Government's statement was general and contradictory and did not mention any progress made in relation to the matters raised in the Committee of Experts' observation. It was no excuse to say that legislative improvements could not be made since the Government's term was ending and that it was up to the new Government to act. The conditions faced by workers had not only failed to improve, they had worsened. There was freedom of association but there were explicit prohibitions on the right to establish trade unions, on collective bargaining and on strikes in the public service. The situation had become more acute as well because of the current economic crisis, as reflected in the figure of more than 2 million persons unemployed or underemployed, which had led to the creation in certain enterprises of parallel enterprises which took advantage of the high unemployment rate by contracting workers at wages lower than those stipulated in collective agreements. The workers of Ecuador had lost faith in the Government. The speaker indicated that in 1987 the Government had proposed amendments to the Labour Code which would have limited the right to engage in sympathy strikes and which, in relation to part-time work, would have violated express provisions on equality of treatment of various forms of work. Congress had fortunately rejected these amendments. The Worker member also referred to the legal minimum wage which in 1984 amounted to US$ 96 and today was only the equivalent of US$ 30 for a typical family of five. He said that the Government's statement alleging that absolute and total freedom of association existed in the country was not true. As an example he cited the demands of workers presented by the three central trade union organisations which made up the Unified Workers' Front (Frente Unitario de Trabajadores), categorised by the Government as an illegal political activity, which had sought wage increases, the resolution of labour disputes, a price freeze on food products, loans and technical assistance for small-scale farmers, improvements in the social security system, no increase in transport fares and non-payment of the foreign debt. To support these demands, a nation-wide strike had been called on 1 June 1988 which had let to the arrest of six workers, including José Chavez, President of the CEOSL, of which the speaker is a member. In conclusion, he stated that Ecuador's social problems needed to be resolved as a priority in the face of the foreign debt. Although, given the severe economic crisis, the workers did not hold out much hope with the new Government which was to take Office on 10 August 1988, they were hopeful that it would respect human rights.

The Employers' members considered that it was clear that there had been no progress in this case. The Government had indicated in its report that it was prepared to make changes in three of the six problem areas (public servants' right to organise, foreigners' eligibility to become members of executive committees of trade unions and non-dissolution of works councils), but the Government representative had not mentioned that any Bill or decree had been submitted to a competent authority to correct these difficulties. The direct contacts mission in 1985 had prepared draft legislation in all of these areas. The case was in the same posture as last year, with no indication of any real will on the part of the Government to correct the deficiencies.

The Government representative had been unable to recognise his own country in much of what had just been said. He admitted that while his country was poor and wages were low, the average wage was in fact three times more than the legal minimum wage. Congress was now discussing an increase in the minimum wage, so the work stoppage mentioned by the Worker member of Ecuador had been called just in case that increase was not adopted. The stoppage had been occasioned by an increase in transport fares, which were very low. The speaker referred to overall economic conditions in the country, which he said were not the worst in the region. He denied that the Government had committed economic crimes against the workers, whose situation was, if not good, at least stable. The workers had freedom of association and freedom of expression; as an example he referred to a newspaper account of a trade union leader referring to the "stupidity of the Minister of Labour" in connection with demands made by transport workers. The Convention was adhered to by the latter in his country although the changes recommended by the direct contacts missions had not been made. Noting that the Ecuador Central of Working Class Organisations had made comments (referred to in footnote 1 to paragraph 79 of the Committee of Experts' general report) in relation to this Convention, he stated that the Government had a clear idea of what needed to be done. The Government was open to amending its legislation but it could not do so every day. Due to opposition, it had not been possible to make the changes. He admitted that there were certain contradictions in the situation.

The Workers' members stated that in view of the importance of the Convention and the long period during which this problem had been under discussion, the deplorable situation justified mentioning this case in a special paragraph of the present Committee's report. The Employers' members agreed with this proposal, given the importance of the issues involved and the evident lack of progress.

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The Government has communicated the following information:

A new Minister has been in charge of the country's labour policy since 12 May 1987. He will try, when the opportunity presents itself, to push for the legal amendments which have been proposed. For this reason, he requests a judicious measure of patience.

The Government reports that the Court of Constitutional Guarantees, on the occasion of a proceeding brought by workers' representatives challenging the continuing validity of Legislative Decree No. 105 of 7 June 1967, confirmed that it was still in effect, since it did not violate any constitutional principles. When the Court's decision was presented to the Plenary of the Permanent Legislative Committees of the National Congress, the Parliament confirmed the judgment.

This situation reaffirms and confirms the position which the Government has been maintaining with regard to the above mentioned Legislative Decree, to the effect that it in no way infriges upon the right to organise, or freedom of association, or the spirit or the letter of Convention No. 87.

Primacy of the Constitution over other laws. This concept, embodying the legal hierarchy, is set forth in the Constitution. The guiding principles for labour rights are incorporated in this Constitution. The right to organise trade unions is guaranteed by the Constitution; it is a constitutional precept. Workers' right to strike and employers' right to lock out are guaranteed by the Constitution: they are constitutional precepts.

The right to strike, guaranteed. by the Constitution and effectively protected by the laws, constitutes the suspension of work, called by workers under certain circumstances specifically set forth in positive norms, within the framework of a collective dispute between the employer and his or her workers, as made known to the competent authorities on the subject. This enables the strikers to remain at the workplace and to be watched over by the police, who guarantee order and protect the strikers from the involvement of agitators or strikebreakers. The penalty for leaders of a strike which has been declared illegal is none other than the loss of their stability of employment. The "lock-out" or "work stoppage" (paro) is, in the labour field, the suspension of work provided by the employer, under certain precise circumstances and also within the framework of a process subject to the jurisdiction of the labour authorities. The "stoppage" (paro) referred to in Legislative Decree No. 105 of the National Assembly is something else, since this Legislative Decree is not labour-related in nature.

Legislative Decree No. 105 refers to activities which criminally paralyse the entire nation or locality for disruptive purposes. It refers to misdeeds which fall within the scope of crimes against the internal security of the State or public safety. It is related to the chapters of the Penal Code which are pertinent for the characterisation of such infractions and in particular sections 129, 130, 135, 136, 153, 155, 158, 159, 218 and 221 of that Code.

The Government requests that it be acknowledged in respect to the continuing allegations made concerning Legislative Decree N o. 105, approved by the National Constituent Assembly, that the Legislative Decree in no way runs counter to legal strikes. which are broadly protected by the Constitution and the laws, and that it does not in any way diminish the application of the Convention.

The legal value protected by Legislative Decree No. 105 is public order and the internal security of the State. The direct victim of the crimes could be any inhabitant of the Republic, whether a national or a foreigner; the indirect victim is civil society in general and could even be the State itself in terms of its political organisation.

When the Legislative Decree uses the word "stoppage" (paro), it does not use it in the same sense as the Labour Code: it does not deal with" a suspension of work ordered by an employer or combination of employers".

In this case the word "stoppage" ("paro") is used to mean "paralisation", arbitrarily imposed, by means of a rebellious attitude toward the legitimate authorities, in which daily life in an area is completely suspended in a region or in the nation as a whole, taking advantage of a situation of total or partial anarchy in the community affected and disturbing the peace of the inhabitants.

The penalties provided for in our Penal Code, in order to protect the internal security of the State and public order, are not unknown in the legislation of other countries. All civilised nations on the globe in one way or another envisage measures designed to defend the survival of the state entity and to protect society from anarchy. As Beccaria said, "The primal and the ultimate crimes, since they are the most dangerous, are those termed lèse majesté...; any crime, even a private crime, is an offence to society, but not every crime aims at its immediate destruction."

In addition, a representative of the Government of Ecuador cited in full the comments of the Committee of Experts in its 1987 report with regard to the Convention. Subsequently, he referred to the information provided by his Government in writing and also read out certain provisions of the Constitution and the Labour Code relating to the right to organise and the right to strike.

The Workers' members insisted upon the fact that national legislation was not in conformity with Conventions Nos. 87 and 98. Two direct contacts missions had taken place in 1980 and 1985. Amendments to the legislation were prepared at the time of the direct contacts mission in 1985. They stated that it was essential to adopt these amendments. They did not think that a new mission of direct contacts was necessary since this would only delay matters. They requested the Government representative to furnish information on the implementation of the legislative reforms which were envisaged.

The Employers' member reminded the Committee that the report of the Committee of Experts had clearly drawn attention to a number of violations, which varied in their importance, with respect to Conventions Nos. 87 and 98. At the time of the direct contacts mission in 1985, draft proposals had been worked out so as to ensure the conformity of national legislation with the Conventions. They thought it would be helpful if the Government representative could indicate whether the legislative reforms which had been envisaged had been adopted and, if not, to indicate whether they would be adopted in the near future. They were not convinced that a new direct contacts mission, as requested by the Government, would serve a useful purpose since the amendments necessary to ensure the compliance of national legislation with the Conventions had already been developed at the time of the 1985 direct contacts mission.

The Worker member of Ecuador expressed his complete disagreement with the information communicated in writing by the Government, as well as with the statement made by the Government representative. He stated that government policy with regard to labour matters rested with the President of the Republic through the labour co-ordination office, and not with the Minister of Labour. The nomination of a new minister would not therefore have an important impact on the situation and would not lead to the adoption of legislation giving effect to Conventions Nos. 87 and 98, whose provisions were not respected. He added that, certainly, the Constitution and the Labour Code honoured the basic principles of labour law. In practice, however, these principles were not respected. This meant that public employees did not have the right to form trade unions, although the Constitution guaranteed the right. Nor did they enjoy the right to strike, although this was permitted under the Constitution. The Act concerning the civil service and carreers in the administration was contrary to the Constitution. It was essential for the Government to take the necessary measures to reform this Act, since it was the basis of the problem. Furthermore, in practice, when workers presented their demands or gave notice of a strike, employers responded by dismissing workers, often en masse. In other cases, they dismissed trade union leaders. Although arbitration and conciliation tribunals had the right to insist on the reinstatement of workers who had been dismissed for having gone on strike, no one had been reinstated. The prohibition imposed on trade unions to participate in the activities of political or religious parties was also a violation of Conventions Nos. 87 and 98. The granting of exclusive rights to bargain collectively to "work councils" was another violation of these Conventions. What was even more serious was the classification of public servants into two categories, those who were covered by the Labour Code and those who were covered by the Act concerning careers in the administration.

As far as Legislative Decree No. 105 of 7 June 1967 was concerned, the Government had declared that its objective was to penalise criminal acts aimed at paralysing the activities of national or local communities. He stated that this was false; work stoppages punished by Legislative Decree Nos. 105 were specifically industrial strikes since these were organised and carried out by the four central trade union organisations. It was not, therefore, a question of crimes against the internal security of the State. Nevertheless, Legislative Decree No. 105 had to considered as abolished by the 1979 Constitution and should not, therefore, be applied.

Another Government representative, the Deputy Minister of Labour of Ecuador, indicated that the labour co-ordination office under the responsibility of the President of the Republic was not in charge of the country's labour policy, but was responsible for co-ordinating everything that related to collective bargaining in the public sector. The Constitution guaranteed the right to organise. Civil servants had enjoyed the right to strike since 1979 following the adoption of amendments to the Labour Code, as the last direct contacts mission had been able to observe. As far as the legal provisions on the prerequisites for workers in the public sector to organise were concerned, the Court of Constitutional Guarantees had suspended them for some time. With regard to Legislative Decree No. 105 of 1967, he stated that it was still in effect and its validity had been confirmed in January 1987 by this Court. He said that the Government of Ecuador had noted with interest the comments of the Committee of Experts. This was why the Government was interested in a new direct contact mission to visit the country so that it could familarise itself with the situation. It would be able to see the existence of trade unions and get in touch with the members of the Court of Constitutional Guarantees as well as with the representatives of Parliament. For this reason, he thought that it was not the time to adopt conclusions critical of Ecuador. He added that there was at the moment an ILO official in Ecuador studying the difficulties with respect to applying vari- ous standards concerning civil servants, which proved the Government's willingness to guarantee the full exercise of rights, not only for workers in the public sector but for all workers. Legislative Decree No. 105 of 1967 did not penalise either the workers or their leaders since in Ecuador the right to strike was guaranteed, but rather the Decree was intended to punish criminal acts, no matter who was responsible for them, which were meant to endanger the internal peace and security of the State.

The Worker member from the United Kingdom recalled that the Committee of Experts had expressed its regrets that the Government had not furnished information on the measures which it intended to undertake so as to give follow-up to the direct contacts missions. The information provided by the Government in writing did not provide any new information on this point. With regard to the Government's request for a new direct contacts mission, he could not see the value of this, since the Committee of Experts had already established the fact that the legislation must be amended. He added that the Government representative of Ecuador should be requested to state specifically if the legislation was going to be amended in such a way as to ensure the application of the relevant Conventions.

The Deputy Minister of Labour declared that it was because his Government considered that certain points had not been settled during the last direct contacts mission, despite the excellent work achieved in the course of this visit, that it had requested a new mission to come to Ecuador to complete the task which had already been undertaken. Furthermore, following the last visit, certain decisions had been taken by certain bodies independent of the executive branch of government, such as for instance the above-mentioned decision taken by the Court of Constitutional Guarantees.

The Workers' members emphasised the fact that the 1985 direct contacts mission had worked out precisely the changes which needed to be made so as to bring national legislation into conformity with Conventions Nos. 87 and 98. A new mission would not contribute anything new, and would merely delay by one or two years the adoption of the reforms which were necessary. Under these conditions and given the fact that the problem was an old one which had been dealt with for some time, they proposed the adoption of a special paragraph to express the concerns of the Committee and to request the Government to give follow-up to the draft reform proposals prepared during the course of the last direct contacts mission and to adopt the legislation to the requirements of the Conventions.

The Employers' members recalled the fact that no new information had been provided concerning changes in the legislation within the context of the draft proposals prepared during the last direct contacts mission, and expressed the view that they did not find the request for a new direct contacts mission to be very convincing. Given the importance of the question which had been considered in the Committee for a number of years, they expressed their support for the proposal of the Workers' members to include a special paragraph in the report of the Committee concerning this problem in the hope that the Government would put into effect measures which had been proposed for a long time.

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The Committee notes that following a referendum held on 28 September 2008, a new Constitution was adopted which entered into force on 20 October 2008.

Article 2 of the Convention. The Committee observes that article 326, paragraph 9, of the new Constitution provides that “for all purposes of the employment relationship in state institutions, the labour sector shall be represented by a single organization”. The Committee recalls that to impose a trade union monopoly in state institutions or bodies is not compatible with the Convention. It again asks the Government to state whether this provision prevents the establishment of more than one organization in each public body or institution, or merely gives preferential rights for collective bargaining to the most representative organization, and to indicate whether once an organization becomes the most representative it may exercise such preferential rights in the place of the organization that no longer has the majority.

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The Committee notes the Government’s reply to the comments of 28 August 2007 by the International Trade Union Confederation (ITUC) concerning the removal by the police of workers taking part in a strike in the banana sector on 11 February 2006. According to the Government, the police removed the workers in order to prevent damage to the facilities and avoid a confrontation between the workers and the owners of the plantation. Furthermore, the Committee notes with regret that the Government has not sent its observations on the other comments of the ITUC concerning repression by the police and the army of a demonstration called by the trade union federations in 2006, causing serious injuries and arrests, or on the alleged threats and acts of intimidation against leaders of the CTE and CEDOCUT. The Committee reminds the Government in this connection that the arrest or detention, even for short periods, of trade union leaders and members engaged in legitimate trade union activities constitutes a grave violation of the principle of freedom of association, and emphasizes that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately as the most appropriate means of fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Lastly, the Committee notes the comments of 24 August 2009 by the National Federation of Workers of the Enterprise “Petróleos del Ecuador” (FETRAPEC) and those of 26 August 2009 by the ITUC referring to legislative issues highlighted by the Committee, and in particular certain provisions of the new Constitution of Ecuador (especially article 326, paragraph 16, which provides that state institutions and private law entities in which public resources have a majority share that carry on representational, management, administrative or professional activities, shall be subject to the laws regulating the public administration and that all others shall be covered by the Labour Code). The Committee requests the Government to send its observations on this matter.

The Committee also notes the comments of 30 August 2009 by the International Organisation of Employers (IOE) in which the latter asserts that the new Constitution of Ecuador includes certain amendments that adversely affect relations between workers and employers and that although representatives from various sectors played an active part in the preparation of the new constitutional texts, there was no real or effective participation or any balanced input to the framing of constitutional provisions from the main partners in the labour relationship, and hence no objective analysis and diagnosis of the issues to be treated in the Constitution. The IOE objects in particular to article 326, paragraph 8, which establishes that the State shall promote the democratic, participatory and transparent operation of workers’ and employers’ organizations with alternation of leadership, on the grounds that this provision constitutes a form of state intervention in the internal activities of workers’ and employers’ organizations, in breach of the Convention.

New Constitution of Ecuador

The Committee notes that on 28 September 2008 a new Constitution was adopted, which entered into force on 20 October 2008. The Committee observes that some of its provisions raise problems of compatibility with the Convention:

–           article 326, paragraph 8, which provides that “the State shall encourage the creation of organizations of men and women workers and of men and women employers, in accordance with the law; and shall promote democracy, participation and transparency in their running with alternation in their leadership”. In this connection, the Committee emphasizes that according to Article 3 of the Convention, decisions as to alternation in executive offices rest solely with the organizations of workers and employers and their members. In these circumstances, the Committee asks the Government to take the necessary steps to repeal or amend this provision so as to allow the re-election of officers of workers’ and employers’ organizations.

–           article 326, paragraph 12, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration. The Committee reminds the Government that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense, i.e. services the interruption of which would endanger the life or personal safety of the whole or part of the population. The Committee requests the Government to take all necessary steps to repeal or amend this provision to ensure that compulsory arbitration is possible only in the instances cited above.

–           article 326, paragraph 15, which prohibits suspension of public services in education, social security, production and transformation of hydrocarbons, transport and distribution of fuel, and provides that the law will provide limits to ensure the said services’ operation. In this respect, the Committee recalls that the right to strike can only be restrained or prohibited: (1) for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of term (i.e. services the interruption of which could endanger the life or personal safety of the whole or part of the population). The Committee also recalls that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to take appropriate measures in order to modify this provision so as to ensure that the right to strike can be exercised in the abovementioned services, with the possibility to provide a system of minimum services which is to be determined with the participation of workers’ and employers’ organizations.

Pending legislative issues

The Committee points out that for many years it has been asking the Government to take steps to repeal or amend:

–           sections 450, 459 and 466 of the Labour Code establishing a minimum requirement of 30 workers for the creation of associations, works committees or assemblies to organize works committees;

–           section 26(g) of the Codification of the Framework Act on the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration which prohibits work stoppages on any grounds in public services which may not be deemed essential in the strict sense (education, social security, hydrocarbon production, fuel processing, transport and distribution, and public transport) and provides for dismissal for failure to observe the prohibition;

–           section 522, second paragraph, of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties in the event of a strike;

–           section 505 of the Labour Code which implicitly denies federations and confederations the right to strike;

–           Decree No. 105 of 7 June 1967 establishing the imposition of prison sentences for participation in unlawful work stoppages and strikes; and

–           section 466(4) of the Labour Code requiring Ecuadorian nationality for service as a trade union officer.

The Committee notes that in its report the Government states that a detailed study will be conducted in the National Assembly for the drafting of a bill to amend the Labour Code and that the Committee’s observations will be submitted to the National Assembly. The Committee hopes that it will be able to note progress in the legislation in the near future and asks the Government in its next report to provide information on all developments in this regard. It reminds the Government that it may seek technical assistance from the Office in the context of its reform of the Labour Code.

The Committee has received information about two proposals for acts being debated in the National Assembly: the Basic Public Service Act and the Basic Act on Public Enterprises. The Committee hopes that the new texts will establish in full the rights laid down in the Convention: the right to organize of public officials and employees and the right to strike of public servants other than those exercising authority in the name of the State.

Furthermore, the Committee once again asks the Government to provide information on the number of associations that have been set up for the promotion and defence of the interests of public servants, the sectors covered and the approximate number of members.

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

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The Committee notes the Government’s report and observes that it does not contain specific information on the legislative measures that are under examination. The Committee also notes the observations made by the International Trade Union Confederation (ITUC) referring to issues that are under examination by the Committee, particularly in relation to the exercise of the right to strike and the repression by the police and the army of a demonstration organized by the trade union confederations and a strike in the banana sector on 11 February 2006. The Committee requests the Government to provide its comments in this respect and on the observations made by the International Confederation of Free Trade Unions (ICFTU, now ITUC), which it noted in its previous observation.

Pending matters

The Committee recalls that for many years its observations have been referring to the following matters:

–           the need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 459 and 466 of the Labour Code);

–           the need to amend section 60(g) of the Civil Service and Administrative Careers Act prohibiting the establishment of unions so as to ensure that public servants have the right to establish organizations to further and defend their occupational and economic interests. The Committee notes with interest the abolition of this prohibition by virtue of the adoption of the codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration. The Committee requests the Government to provide information on the number of associations which have been established to further and defend the interests of public servants, the sectors covered and the approximate number of members under the terms of the recently adopted codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration, which amends section 60(g) of the Civil Service and Administrative Careers Act;

–           the need to amend article 35(10) of the Political Constitution, which prohibits the stoppage on any grounds of public services which may not be considered essential in the strict sense of the term (education, social security, the refining, transport and distribution of fuel and public transport). The Committee also notes that section 26(9) of the codified version of the Framework Act respecting civil service and administrative careers and the unification and standardization of public sector remuneration, which was adopted recently, lays down the same prohibition;

–           the need to amend section 522(2) of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties in the event of a strike;

–           the implicit denial of the right to strike by federations and confederations (section 505 of the Labour Code);

–           the imposition of prison sentences for participation in illegal work stoppages or illegal strikes (Decree No. 105 of 7 June 1967); and

–           the requirement to be of Ecuadorian nationality to serve as a trade union officer (section 466.4 of the Labour Code).

Noting that it has been commenting on these provisions for many years, the Committee hopes that the Government will take the necessary measures in the near future to bring the legislation into full conformity with the Convention. The Committee requests the Government to keep it informed of any development in this respect.

Draft constitutional reform

The Committee notes the Government’s indication that the Minister of Labour and Employment announced that draft provisions would be presented to the President for inclusion in the new Political Constitution of the Republic in the section on “Labour” for analysis and possible submission for consideration by the Constituent National Assembly. The Government is facilitating the passage of the draft text, section 32(11) of which maintains the prohibition set out in the current Constitution which has been criticized by the Committee relating to the exercise of the right to strike in non-essential public services. The Committee reiterates its previous comments. The Committee requests the Government to keep it informed of developments relating to the draft text of the new Political Constitution and expresses the hope that it will be in full conformity with the provisions of the Convention.

Draft reform of the Labour Code

The Committee was informed previously of the existence of a draft text to reform the Labour Code which had been formulated with ILO assistance. The Committee understands that the examination of this text is suspended in view of the constitutional reform process. In these circumstances, the Committee requests the Government to keep it informed of developments relating to this draft legislation.

Finally, the Committee reminds the Government that, in the context of the current legislative and constitutional reforms, it may benefit from ILO technical assistance with a view to ensuring the conformity of the reforms with the Convention.

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The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) of 10 August 2006, which essentially refer to issues of a legislative nature that are already under examination. The ICFTU also indicates that workers in service enterprises and with short-term contracts do not benefit from the guarantees set out in the Convention, and refers to difficulties in exercising the right to organize in the flower-growing sector and to the arrest of trade union leaders in the banana sector. In this respect, the Committee requests the Government to provide its observations in relation to the ICFTU’s comments.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to legislation and the application of the Convention in practice raised in its previous observation in 2005 (see 2005 observation, 76th Session).

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The Committee notes the Government’s report. It also notes the comments of the International Confederation of Free Trade Unions (ICFTU), dated 6 June 2005, on the application of the Convention, which principally refer to matters already raised by the Committee. The Committee requests that the Government provide its observations in its next report on the ICFTU’s comments that allege that temporary workers are not covered by the guarantees set out in the Convention.

The Committee recalls that for many years its observations have been referring to the following matters:

–      the need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code);

–      the need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations to further and defend their occupational and economic interests and to have recourse to strike action;

–      the need to amend section 522(2) of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties;

–      the implicit denial of the right to strike to federations and confederations (section 505 of the Labour Code);

–      the imposition of prison sentences for participation in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967); and

–      the requirement of Ecuadorian nationality to serve as a trade union officer (section 466(4) of the Labour Code).

The Committee regrets that in relation to all these comments the Government confines itself in its report to making statements of a general nature, indicating that the provisions of section 450 of the Labour Code on the minimum number of workers required to establish an association do not impair the right to organize in the country, and that the requirements set out by the law for the establishment of trade unions are inevitable to prevent a series of conflicts leading to challenges and applications for protection from the Constitutional Court. Under these conditions, the Committee requests the Government to take measures to amend the legislative provisions in question, which in some cases relate to serious violations of the Convention, such as the prohibition for public servants to enjoy the right to establish organizations to further and defend their occupational and economic interests, and to provide information in its next report on any measures adopted in this respect. The Committee reminds the Government that if it is planning to reform the legislation, it can have recourse to the technical assistance of the Office to ensure that it is in full conformity with the provisions of the Convention.

With regard to workers in the public education sector, the Committee makes its comments in an observation concerning Convention No. 98.

Finally, with reference to the ICFTU’s comments on the application of the Convention, which were submitted on 19 July 2004, the Committee regrets that the Government has not provided its observations on the allegation that striking workers were replaced in the Petroecuador company or on the violent repression by the police and the arrest of 70 persons during a march by teachers on 10 December 2003. In this respect, the Committee recalls that the hiring of workers to break a strike in a sector which cannot be considered an essential service in the strict sense of the term is an infringement of the principles of freedom of association. Furthermore, the Committee emphasizes that the authorities should resort to calling in the police in a strike situation only where the situation is of a serious nature or if there is a genuine threat to public order.

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The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 19 July 2004 on the application of the Convention and the Government’s reply thereto.

As most of the matters raised by the ICFTU were examined last year in the context of the regular reporting cycle, the Committee will examine these comments, the Government’s reply and its observations on the other outstanding issues raised by the Committee (see 2003 observation, 74th Session) when it receives the Government’s report due for examination in 2005.

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The Committee takes note of the Government’s report.

The Committee recalls that for several years its comments have addressed the following points.

1. Need to reduce the minimum number of workers (30) required to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes with regret that there has been no tripartite discussion about reducing the number of workers required to establish a trade union or a works committee. While recalling that this minimum number would be permissible for industry trade unions, the Committee again requests the Government to take the necessary steps to reduce the minimum number of workers required to form associations or works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces and workers in the shipping sector to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), which comprises civilian workers of the armed forces. The Committee notes that the Government once again states that the civilian workers of the armed forces may join organizations and associations (in its previous observation, the Committee noted the Government’s statement that they enjoy the right of association under article 35 of the Political Constitution), and that no application to register by a TRANSNAVE union having been found, the Government has requested the trade union to submit an application for registration or a copy of its earlier application.

3. Need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations for furthering and defending their occupational and economic interests and to have recourse to strike action. The Committee notes that, according to the Government, there has as yet been no progress regarding the reform of the abovementioned legislation. The Committee recalls that, according to Article 2 of the Convention, all workers, with the sole possible exception of the armed forces and the police, should have the right to organize irrespective of any possible restrictions on the right to strike for certain categories of workers (public servants exercising authority in the name of the State and workers in essential services, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). The Committee requests the Government to take steps to secure the amendment of the abovementioned provisions of the Civil Service and Administrative Careers Act and of the Political Constitution, and to provide information in its next report of the measures taken to that end.

4. Need to amend section 522(2) of the Labour Code under which the Ministry of Labour determines the minimum services in the event of a strike in case of disagreement between the parties. The Committee notes that a proposal to reform the legislation has been drafted and that the Committee will be informed as soon as there are concrete results. The Committee recalls that, in the absence of an agreement between the parties, responsibility for determining the minimum services should lie with an independent body which has the confidence of both parties, and not with the Ministry of Labour. The Committee expresses the hope that the abovementioned reform will be consistent with the principles of the Convention, and requests the Government to provide information in its next report on any developments in the reform.

5. Implicit denial of the right to strike to federations and confederations (section 505 of the Labour Code). The Committee notes that the Government has not sent its observations on this matter. The Committee recalls that under Article 6 of the Convention federations and confederations must have the right to organize their administration and activities and formulate their programmes. The Committee requests the Government to amend section 505 of the Labour Code so as to ensure the abovementioned right.

6. Prison sentences for participation in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes that, according to the Government, as part of the reform of the legislation, Decree No. 105 is to be amended or repealed. The Committee hopes that this decree will be amended in the reform of the legislation, and requests the Government to provide information in its next report on any developments in this regard.

7. The requirement of Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, consideration has been given to including this matter too in the reform of the legislation. The Committee hopes that, in the course of the abovementioned reform, it will be borne in mind that in conformity with Article 3 of the Convention "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 118). The Committee requests the Government to provide information in its next report on any developments in this aspect of the reform.

Lastly, in view of the Government’s statement that there is a proposal for a reform of the legislation, the Committee suggests that the Government may wish to seek technical assistance from the Office to ensure that the reform takes full account of the provisions of the Convention.

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The Committee notes the Government’s report.

The Committee recalls that in its previous observations it referred to the following points.

1. Need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). The Committee notes the Government’s statement that there is no desire among the social partners to amend these provisions. The Committee regrets to note that it has been referring to this legal requirement for many years and reiterates that, even though this minimum number would be permissible for industry trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee once again expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

2. The need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions, and the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE). In this respect, the Committee notes the information provided by the Government that there is no explicit prohibition in the Act respecting personnel in the armed forces of the right to organize of civilian personnel in the armed forces and that, as a consequence, article 35 of the Political Constitution, which refers to freedom of association, is fully applicable. The Committee also notes the Government’s statement that, while there is no opposition to the registration of the TRANSNAVE trade union, the workers themselves have no intention of being unionized, for which reason the trade union is not being registered. The Committee nevertheless notes that, during the examination of Case No. 1664, the Government indicated that the workers in TRANSNAVE were governed by the Act respecting personnel in the armed forces, in accordance with which they could not establish a trade union (see the 286th Report of the Committee on Freedom of Association, paragraph 283). In these conditions, the Committee requests the Government to clarify whether civilian personnel in the armed forces and workers in the maritime transport sector benefit from the right to organize and to keep it informed of the measures adopted by the workers of TRANSNAVE with a view to the registration of the trade union.

3. The need to amend sections 59(f) and 60(g) of the Civil Service and Administrative Careers Act, and article 45(10) of the Political Constitution, with a view to ensuring that public servants have the right to establish organizations for furthering and defending their occupational and economic interests and to have recourse to strike action. The Committee notes the Government’s statement that it is assessing the possibility of amending the above provisions with a view to recognizing the right of association of public servants and the consequences of such an amendment not only for the workers involved, but also for the rest of society, particularly with regard to the right to strike. The Committee recalls that, in accordance with Article 2 of the Convention, all workers, with the sole possible exception of the armed forces and the police, should have the right to organize, irrespective of any possible restrictions on the right to strike for certain categories of workers. Indeed, while the Committee has reiterated on many occasions that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests, this right cannot be considered as an absolute right and may be governed by provisions laying down conditions for, or restrictions on, the exercise of this right (see General Survey of 1994, paragraphs 147 and 151). In this respect, the Committee considers that the right to strike may be restricted in the case of public servants exercising authority in the name of the State. Moreover, with regard to services, the Committee considers that the right to strike can also be restricted in essential services, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraphs 158 and 159), irrespective of whether the entity providing such services is public or private. In the case of services which are non-essential, but which are considered to be of public utility, such as education and transport where, without calling into question the right to strike of the large majority of workers, consideration might be given to ensuring that users’ basic needs are met, a minimum service may be established (see General Survey, op. cit, paragraphs 161 and 162). The Committee requests the Government to take measures to amend the above provisions so as to bring them into conformity with Articles 2 and 3 of the Convention.

4. The need to amend section 522(2) of the Labour Code respecting the determination of minimum services in the event of a strike by the Minister in the case of disagreement between the parties. The Committee notes the information provided by the Government that the first subsection of the above section provides that the parties shall agree on the procedures for the provision of minimum services that shall be maintained for the duration of the strike. Nevertheless, the Committee notes that the same section, in subsection 2, provides that in the absence of agreement, arrangements for the provision of minimum services shall be established by the Ministry of Labour. The Committee considers that in this case the determination of the above minimum services should be the responsibility of an independent body in which both parties have confidence, and not the Ministry of Labour. The Committee requests the Government to take the necessary measures to amend section 522(2) of the Labour Code to bring it into conformity with the provisions of the Convention.

5. The implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code) and the imposition of penalties of imprisonment on persons who participate in illegal work stoppages and strikes (Decree No. 105 of 7 June 1967). The Committee notes the information provided by the Government that there have been no amendments to the legislation in this respect. The Committee recalls that, in accordance with Article 3 of the Convention, workers’ organizations shall have the right to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to take measures to amend the above provisions so as to bring them into conformity with the provisions of the Convention.

6. The requirement to have Ecuadorian nationality to serve as a trade union official (section 466(4) of the Labour Code). The Committee notes that, according to the Government, there are no plans to amend this provision. The Committee recalls once again that, by virtue of Article 3 of the Convention, "legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country" (see General Survey, op. cit., paragraph 118) so as to ensure that workers’ and employers’ organizations have the right to elect their representatives in full freedom. The Committee therefore once again requests the Government to take measures to amend section 466(4) of the Labour Code.

7. The need to ensure the right to appeal to the judicial authorities against the dissolution by administrative authority of a works committee, as envisaged under section 472 of the Labour Code. The Committee notes the information provided by the Government that, by virtue of section 447 of the Labour Code, "Workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts" and that any dissolution by administrative authority is accordingly suspended until the judicial authority has ruled thereon.

The Committee observes once again that, despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the requirements of the Convention on the points referred to above. The Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above and requests the Government to provide information in this respect in its next report. The Committee once again recalls that ILO assistance is available to the Government for this purpose.

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The Committee notes that in its previous comments it referred to article 35(9) of the Political Constitution, which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations in state institutions, the workers shall be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the provisions of the Convention. The Committee therefore once again requests the Government to indicate whether this provision prevents the establishment of more than one organization in each public body or institution, or merely gives preferential rights for collective bargaining to the most representative organization, and whether once an organization becomes the most representative it can exercise such preferential rights in the place of the organization that no longer has the majority.

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The Committee notes the Government’s report.

The Committee recalls that in its previous observations it raised the following points.

1. Right of workers and employers, without distinction whatsoever, to establish organizations of their own choosing (Article 2).

(a)  The Committee has referred to the need to amend section 59(f) of the Civil Service and Administrative Careers Act to ensure that civil servants, in addition to being able to "associate and appoint their leaders," are able to establish organizations to promote and defend their occupational and economic interests. Noting that the Government continues to refer to article 35(9) of the Political Constitution, the Committee recalls that, when it comes to the question of the right of public servants, this article refers to the laws governing the public administration. The Committee therefore requests the Government to provide information in its next report on any legislative progress made in amending the Civil Service and Administrative Careers Act so that public servants can establish organizations within the meaning of Article 10 of the Convention.

(b)  The Committee also referred to the need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions. In this respect, the Committee regrets that the Government does not refer to this matter in its report. The Committee considers that, in view of the fact that Article 9 of the Convention only envisages exceptions for the police and the armed forces, workers should be considered as civilians in case of doubt (see General Survey on freedom of association and collective bargaining, 1994, paragraph 55). The Committee therefore asks the Government to take measures to ensure that civilian employees in the armed forces and the maritime sector are guaranteed the right to organize in conformity with Article 20 of the Convention and to provide information in this respect in its next report.

The Committee also addressed the issue of the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), and notes in this respect the Government’s indication in its report that it would not oppose the registration of this trade union. In these conditions, the Committee requests that the Government take the necessary measures for the registration of the trade union as soon as possible. It asks the Government to provide information in this respect in its next report.

(c)  The Committee also recalls that for a number of years it has been referring to the need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). It reiterates that, although this minimum number of workers would be permissible for industrial trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

(d)  With regard to the administrative refusal to register a trade union, professional association (section 452 of the Labour Code) or works committee (section 466(2)), the Committee regrets to note that the Government has not made any comment and requests it to ensure that, in the event of refusal of registration, the trade union, association or works committee whose application was denied is able to appeal to the competent judicial authorities for the examination of the question on the merits and the reasons for which the measure was taken.

2. Right of workers’ organizations to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes (Article 3).

(a)  The Committee recalls that in its previous comments it referred to the need to amend section 60(g) of the Civil Service and Administrative Careers Act, which prohibits civil servants from calling strikes. It also requested the Government to amend article 45(10) of the Political Constitution, which prohibits the interruption of public services for any reason. The Committee noted in this respect that this prohibition should be confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that, according to the Government’s latest report, since public servants exercising authority are not those who provide public services which may be essential for the life and integrity of the population, it would not be logical to limit the prohibition of strikes to these persons. Furthermore, according to the Government, the education and transport sectors must be considered as basic essential services. The Committee nevertheless considers that the abovementioned provisions incorporate an overly broad view of those public servants who may be excluded from the exercise of the right to strike and of "essential services" in which strikes may be prohibited. The Committee recalls in particular that the education and transport sectors do not constitute essential services in the strict sense of the term. It recalls however that the authorities may establish a system of minimum service in services which are not essential, such as public utilities, instead of prohibiting all strike action. In the light of these considerations, the Committee hopes that the above provisions will be brought into conformity with Article 3 of the Convention in the near future.

(b)  In its previous comments, the Committee also referred to the need to amend section 522(2) of the Labour Code concerning the determination of minimum services in the event of a strike by the Minister in the case of a disagreement between the parties. Noting that the Government does not refer to this matter, the Committee once again requests it to take the necessary measures to ensure that workers’ organizations are able to participate, if they so wish, in defining this service, along with employers and the public authorities (see 1994 General Survey, paragraph 161). The Committee expresses the firm hope that the Government will make this amendment to the legislation in the near future and will provide information in this respect in its next report.

(c)  The Committee notes the Government’s indication that appropriate procedures have been set in motion to repeal Decree No. 105 of 7 June 1967, with regard to unlawful work stoppages and strikes, and the prison sentences which can be imposed on those instigating or taking part in such acts. The Committee hopes that the Government will complete this process in the near future and requests that the Government provide information on this in its next report.

(d)  With regard to the implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code), the Committee notes that the Government makes no comment on this matter. It recalls that workers’ organizations have the right to organize their activities and to formulate their programmes (Article 3) and that, under Article 6 of the Convention, provisions of this Article apply to federations and confederations of workers’ and employers’ organizations. It therefore requests the Government to take measures to amend its legislation so as to ensure that federations and confederations may exercise industrial action without penalty.

(e)  With regard to the requirement that a person must have Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code), the Committee notes the Government’s indication that it is possible to recognize a person who is not of Ecuadorian nationality as a trade union officer since, in any case, the Convention and the Political Constitution (article 13, under which "foreign nationals shall enjoy the same rights as Ecuadorians, with the limitations established in the Constitution and in the law") prevail over the law, because they have supremacy and higher legal authority than other legislative provisions, such as the Labour Code. Nevertheless, the Committee understands that section 466(4) of the Labour Code sets forth a specific limitation on the right of persons who are not nationals of Ecuador to hold trade union office (the members of the executive board have to be nationals of Ecuador), whereas Article 3 of the Convention provides generally that workers’ organizations shall have the right to elect their representatives in full freedom. Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence, in the host country (see 1994 General Survey, paragraph 118), the Committee asks the Government to take measures to amend section 466(4) of the Labour Code.

3. Workers’ organizations shall not be liable to be dissolved or suspended by administrative authority (Article 4).

(a)  In its previous comments, the Committee referred to the need to ensure the right to appeal to the judicial authorities against the dissolution by the administrative authority of a works committee, which may arise under section 472 of the Labour Code. The Committee notes that under the terms of section 447 of the Labour Code, "workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts". The Committee recalls in this respect that the right of appeal must be allowed to an independent and impartial judicial body which is competent to examine the case on its merits. Moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey paragraph 185). The Committee therefore requests that the Government indicate in its next report whether labour court judges are competent to examine the merits of the case and whether an administrative decision does not take effect until a final decision is handed down.

Finally, noting that despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the Convention on the points referred to above, the Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above. It asks the Government to provide it with information in this respect in its next report. It once again recalls that ILO technical assistance is available to the Government in this regard.

The Committee is also addressing a request on another matter directly to the Government.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which reads as follows:

The Committee recalls that in its previous observation, it noted that two Bills had been drafted in the course of a technical assistance mission of the Office, which took place in September 1997 at the request of the Government. The contents of these Bills and the Government’s comments on certain points are as follows:

-  the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests (on this point, the Government indicates in its report that article 35(9) of the Constitution recognizes the right to organize of civil servants). The Committee observes, however, that article 35(9) provides that "labour relations in the institutions included in subsections (1) (legislative, executive and judicial organs and bodies), (2) (electoral bodies), (3) (organs of control and regulation), and (4) (entities that are part of an autonomous regime) of article 118, and with respect to legal persons created to exercise public authority, along with civil servants, are covered by the laws governing public administration";

-  the repeal of section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, and the adoption of a provision according to which strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or for those who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population);

-  an addition to section 452 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-  the amendment of section 454(11) to provide that higher-level organizations enjoy the right to express their opinions on the Government’s economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-  adding to the end of section 466(2) a provision to the effect that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-  the deletion from section 466 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official. The Government in its report indicates that this section of the Labour Code would become inoperable were a non-Ecuadorean worker to request to be recognized as a trade union leader, pleading the application of Convention No. 87 or requesting a competent judge to declare the provision of the Labour Code to be unconstitutional. The Committee observes, however, that article 13 of the Constitution states that "foreigners are entitled to the same rights as Ecuadoreans, unless otherwise provided in the Constitution and the law". The Committee considers that the Constitution, as presently worded, does not clearly guarantee to Ecuadoreans the right to hold trade union leadership posts;

-  the amendment of section 472 on the dissolution by administrative measures of a works committee in order to grant to the workers’ or employers’ organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee. The Government indicates that for the last 15 years, no such dissolution has taken place in practice;

-  the amendment of section 522(2) concerning minimum services in the event of a strike providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers’ and employers’ organizations in the sector; and

-  the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-  the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 450, 466 and 459 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced to facilitate the establishment of enterprise unions and not to hinder their establishment, particularly in view of the very large proportion of small enterprises in the country;

-  the deprival of the guarantee of security to workers who take part in a solidarity strike (section 516 of the Labour Code). The Government insists on the fact that it is trying to prevent the abusive use of solidarity strikes that would result in long periods of immobility;

-  the implicit refusal of the right to strike for federations and confederations (section 505 of the Labour Code).

-  the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice, and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association). The Government indicates that the relationship between the different constitutional provisions would require the revision of the trade union’s request for registration.

The Committee observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention. The Committee requests the Government to take the measures necessary without delay to bring the legislation and the practice into conformity with the Convention. The Committee reminds the Government that the Office is available to provide technical assistance, and expresses the firm hope that the Government will supply information in its next report concerning all progress achieved with respect to the questions raised.

The Committee notes that certain new provisions of the 1998 Constitution give rise to, or could give rise to, problems with respect to the application of the Convention:

-  Article 35(9) which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations for those in State institutions, the workers will be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the requirements of the Convention. In this regard, the Committee requests the Government to indicate if article 35(9) of the Constitution implies that only one organization or many can be established per public body or institution; if many can be established, whether preferential rights are granted to the most representative organization, and in the case of an organization becoming the most representative, whether it can exercise these rights in the place of the organization that no longer has the majority.

-  Article 35(10), first paragraph, which recognizes and guarantees the right to strike and the right to lockout to workers and employers pursuant to the legislation and second paragraph, which states that "it is prohibited to interrupt, for whatever reason, public services in particular those concerning health, education, justice and social security; electrical energy, drinking-water and sewers; transformation, transport and distribution of fuel, public transport and telecommunications. The law will provide appropriate sanctions". The Government states that the first part of paragraph (10) recognizes and guarantees the right to strike and that the concept of "interruption" under the Constitution is interpreted as an action which results in the interruption or cessation, far removed from what the law generally stipulates. In this context, the Committee is of the opinion that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous General Surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the interruption of strikes in the public sector is too extensive and that in particular education and general transport services (of persons and products) cannot be considered to be essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to take measures to amend the constitutional provisions noted in conformity with freedom of association principles and to specify the measures envisaged or taken to grant compensatory guarantees to workers deprived of the right to strike.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the Government's report and the discussion that took place during the 1998 Conference Committee.

The Committee recalls that in its previous observation, it noted that two Bills had been drafted in the course of a technical assistance mission of the Office, which took place in September 1997 at the request of the Government. The contents of these Bills and the Government's comments on certain points are as follows:

-- the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests (on this point, the Government indicates in its report that article 35(9) of the Constitution recognizes the right to organize of civil servants). The Committee observes, however, that article 35(9) provides that "labour relations in the institutions included in subsections (1) (legislative, executive and judicial organs and bodies), (2) (electoral bodies), (3) (organs of control and regulation), and (4) (entities that are part of an autonomous regime) of article 118, and with respect to legal persons created to exercise public authority, along with civil servants, are covered by the laws governing public administration";

-- the repeal of section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, and the adoption of a provision according to which strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or for those who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population);

-- an addition to section 452 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-- the amendment of section 454(11) to provide that higher-level organizations enjoy the right to express their opinions on the Government's economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-- adding to the end of section 466(2) a provision to the effect that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-- the deletion from section 466 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official. The Government in its report indicates that this section of the Labour Code would become inoperable were a non-Ecuadorean worker to request to be recognized as a trade union leader, pleading the application of Convention No. 87 or requesting a competent judge to declare the provision of the Labour Code to be unconstitutional. The Committee observes, however, that article 13 of the Constitution states that "foreigners are entitled to the same rights as Ecuadoreans, unless otherwise provided in the Constitution and the law". The Committee considers that the Constitution, as presently worded, does not clearly guarantee to Ecuadoreans the right to hold trade union leadership posts;

-- the amendment of section 472 on the dissolution by administrative measures of a works committee in order to grant to the workers' or employers' organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee. The Government indicates that for the last 15 years, no such dissolution has taken place in practice;

-- the amendment of section 522(2) concerning minimum services in the event of a strike providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers' and employers' organizations in the sector; and

-- the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-- the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 450, 466 and 459 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced to facilitate the establishment of enterprise unions and not to hinder their establishment, particularly in view of the very large proportion of small enterprises in the country;

-- the deprival of the guarantee of security to workers who take part in a solidarity strike (section 516 of the Labour Code). The Government insists on the fact that it is trying to prevent the abusive use of solidarity strikes that would result in long periods of immobility;

-- the implicit refusal of the right to strike for federations and confederations (section 505 of the Labour Code).

-- the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice, and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association). The Government indicates that the relationship between the different constitutional provisions would require the revision of the trade union's request for registration.

The Committee observes that the Government stresses with respect to all the points raised the supreme importance of article 163 of the Constitution by virtue of which international conventions and treaties are incorporated ipso jure into national law and prevail over other laws and lower-level standards. The Government indicates further that the Minster of Labour is in the process of drafting the necessary directives so that when mere administrative acts covered by national laws occur, then the criteria set out in the Constitution would apply. In the case of conflict, resort will be had to international labour Conventions, and these will prevail over the laws. In addition, the Government states that: (i) it is seeking to identify acceptable mechanisms so that while there is no new labour legislation, the existing legal provisions will not apply and the international labour Conventions will prevail; (ii) the Government has never abandoned the idea of continuing with the reform of the labour legislation. In this regard, if the Ministry of Labour considers it necessary, it will request the technical assistance of the Office to bring the labour legislation into conformity; (iii) the Ministry of Labour indicates its good will in retaining all the positive aspects of the technical assistance mission that visited Ecuador in 1997; and (iv) it requests the Committee to indicate what could be taken from the agreements reached during the mission in 1997, in the light of the new Constitution, in order to assist them with the follow-up. Finally, the Government states that it is seeking solutions to the other problems raised by the Committee on which it has not yet commented.

In these circumstances, the Committee, while taking note of the good will expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention. The Committee requests the Government to take the measures necessary without delay to bring the legislation and the practice into conformity with the Convention. The Committee reminds the Government that the Office is available to provide technical assistance, and expresses the firm hope that the Government will supply information in its next report concerning all progress achieved with respect to the questions raised.

The Committee notes that certain new provisions of the 1998 Constitution give rise to, or could give rise to, problems with respect to the application of the Convention:

-- Article 35(9) which provides that "the right of association is guaranteed to all workers and employers and the right to organize their programmes without previous authorization and in conformity with the law. As concerns labour relations for those in State institutions, the workers will be represented by one organization". The Committee recalls that imposing a trade union monopoly within state institutions or bodies is not compatible with the requirements of the Convention. In this regard, the Committee requests the Government to indicate if article 35(9) of the Constitution implies that only one organization or many can be established per public body or institution; if many can be established, whether preferential rights are granted to the most representative organization, and in the case of an organization becoming the most representative, whether it can exercise these rights in the place of the organization that no longer has the majority.

-- Article 35(10), first paragraph, which recognizes and guarantees the right to strike and the right to lockout to workers and employers pursuant to the legislation and second paragraph, which states that "it is prohibited to interrupt, for whatever reason, public services in particular those concerning health, education, justice and social security; electrical energy, drinking-water and sewers; transformation, transport and distribution of fuel, public transport and telecommunications. The law will provide appropriate sanctions". The Government states that the first part of paragraph (10) recognizes and guarantees the right to strike and that the concept of "interruption" under the Constitution is interpreted as an action which results in the interruption or cessation, far removed from what the law generally stipulates. In this context, the Committee is of the opinion that the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi-public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous General Surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. The Committee considers that the interruption of strikes in the public sector is too extensive and that in particular education and general transport services (of persons and products) cannot be considered to be essential services in the strict sense of the term. In these circumstances, the Committee requests the Government to take measures to amend the constitutional provisions noted in conformity with freedom of association principles and to specify the measures envisaged or taken to grant compensatory guarantees to workers deprived of the right to strike.

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The Committee notes the Government's report.

The Committee observes that the Government requested the technical assistance of the Office to bring the legislation into conformity with the provisions of the Convention and that a mission visited the country from 4-10 September 1997. The Committee notes that during the mission two Bills were drafted providing for the repeal or amendment of certain legislative provisions criticized by the Committee in its previous observations and direct requests.

The Committee observes that one of the Bills provides:

(1) the amendment of section 59(f) of the Civil Service and Administrative Career Act so that civil servants can establish organizations for the promotion and defence of their occupational and economic interests; and

(2) repeals section 60(g) of the same Act which prohibits civil servants from striking or supporting or participating in strikes, and from establishing trade unions, while it lays down that strikes are prohibited only for civil servants who exercise authority in the name of the State (officials in ministries, the judicial authorities and the armed forces) or who are carrying out essential services within the strict meaning of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

The Committee observes that the other Bill provides:

-- an addition to section 441 of the Labour Code to the effect that in the event of refusal of registration, the occupational trade union in question may appeal to the competent judicial authorities for the merits of the case to be examined as well as the reasons for the measure being taken;

-- section 443(11) is amended to the effect that organizations of a higher level enjoy the right to express their opinions on the Government's economic and social policies in a peaceful manner but shall not intervene in purely party, political or religious activities unconnected with their function of promoting and defending the interests of their members, nor shall they oblige their members to intervene in them;

-- adding a second paragraph to the end of section 455 providing that in the event of refusal of registration, the works committee in question shall be able to appeal to the competent judicial authorities for the purpose of having the merits of the question examined along with the reasons for the measure;

-- the deletion from section 455 of paragraph (4) concerning the requirement to be Ecuadorean in order to serve as a trade union official;

-- the amendment of section 461 on the dissolution by administrative measures of a works committee in order to grant to the workers' or employers' organizations concerned or the Ministry of Labour the right to appeal to the judicial authorities in order to request dissolution of the committee;

-- the amendment of section 69 of Act No. 133 on minimum services in the event of strike (introduced into the Labour Code following section 503) providing that in the absence of agreement, the measures for the provision of minimum services will be laid down by the Ministry of Labour through the General Labour Directorate or the relevant subdirectorate in consultation with the workers' and employers' organizations in the sector; and

-- the repeal of Decree No. 105 of 7 June 1967 on unlawful work stoppages and strikes for which prison sentences can be imposed on the instigators of collective work stoppages and on those taking part in them.

In addition, the Committee recalls that for many years it has been referring to the following matters:

-- the need to reduce the minimum number of workers (30) needed to be able to establish associations, works committees or assemblies in order to organize works committees (sections 439, 455 and 448 of the Labour Code). Although the minimum number of 30 workers would be admissible for industrial trade unions, the Committee considers that the minimum number should be reduced for works trade unions in order not to hinder the establishment of such organizations, particularly in view of the very large proportion of small enterprises in the country;

-- the need for civilian workers in bodies associated with or dependent on the armed forces, particularly workers in the maritime transport sector of Ecuador, to enjoy the right to join trade unions of their choice and for the Union of Ecuadorean Shipping Transport Workers (TRASNAVE) to be registered with the utmost dispatch (Case No. 1664 of the Committee on Freedom of Association);

-- the deprival of the guarantee of stability to workers who take part in a solidarity strike (section 65 of Act No. 133, including following section 498 of the Labour Code); and

-- the implicit refusal of the right to strike for federations and confederations (section 491 of the Labour Code).

The Committee observes that in its report the Government indicates that the draft legislative reforms transmitted to Congress in 1989 have been reactivated and that for this purpose the Ministry of Labour has transmitted them to the President of the Congress under cover of Communication No. 098-AIT-97 of September 1997.

The Committee is surprised that the Government does not mention in its report the Bills drafted during the recent ILO technical assistance mission. In these circumstances, the Committee is therefore bound to insist that the Government take the necessary measures with the utmost dispatch in order to bring the legislation and practice into conformity with the Convention. The Committee expresses the strong hope that the Government will supply information in its next report on all progress made in relation to the questions which have been raised for many years.

[The Government is asked to supply full particulars to the Conference at its 86th Session.]

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The Committee notes the information supplied by the Government in its report and recalls that its previous comments concerned:

- the denial of the right to organize to civilian employees of the armed forces (Case No. 1664 of the Committee on Freedom of Association);

- the loss of the guarantee of job security by workers who participate in sympathy strikes (section 65 of Act No. 133);

- the implicit denial of the right to strike for federations and confederations (section 491 of the Labour Code); and

- the responsibility for the decision resting with the Ministry of Labour in the event of disagreement between the parties as to the minimum services to be maintained in the event of a strike in services considered by the Government to be essential, even if they are not necessarily so, including when the State is a party to the dispute (new section 503 of the Labour Code).

From the information supplied in its report, the Committee notes that the Government reiterates in general terms the viewpoints expressed previously, without providing any new element to show that the Government is interested in giving full effect to the provisions of the Convention.

Under these conditions, the Committee is bound to re-emphasize its previous observations and once again request the Government to take measures to amend the legislation so that the civilian employees of the armed forces have the right to establish their own organizations, if they so wish; workers who participate in a sympathy strike enjoy the guarantee of job security set out in section 496 of the Labour Code; to ensure that the exercise of the right to strike is not limited to federations and confederations; and that disagreements between the parties on minimum services in the event of a strike in services that are not essential in the strict sense of the term are resolved consensually.

The Committee hopes that the Government will provide information in its next report on any progress achieved on the above matters.

[The Government is asked to report in detail in 1997.]

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The Committee notes the Government's report and the conclusions and recommendations of the Committee on Freedom of Association in Case No. 1767 (297th Report, paragraphs 295 to 305), which relates to the restrictions on the right to organize at the first and higher levels in the nursing sector, and recalls that its previous comments concerned:

- the ban on public servants from forming unions (section 10 (g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55 of the Labour Code, new sections);

- the penalties of imprisonment for instigators of and participants in collective work stoppages (Decree No. 105, 7 June 1967);

- the requirement that the members of the executive committees of works councils be of Ecuadorian nationality (section 455 of the Labour Code);

- the dissolution by administrative decision of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities and the requirement that this must be established in union statutes (section 443 (11) of the Code).

In this respect, the Committee regrets to note that the Government has not provided any reply to the comments that it has been making for many years and that it has confined itself to stating that the National Congress has not yet dealt with the legal reforms.

With regard to the denial of the registration of the Federation of Free Nursing Auxiliaries of Ecuador (FAELE) and of various trade unions of workers in the same sector (on the grounds that they do not represent more than 30 affiliated members and because these workers are considered to be public servants, Case No. 1767), the Committee wishes to remind the Government that under the terms of Articles 2 and 5 of the Convention, workers "without distinction whatsoever" have the right to establish and join organizations of their own choosing "without previous authorization", both as first-level organizations and as federations and confederations.

The Committee once again requests the Government to take the necessary measures so that the draft legislative reforms to which it has been committed for some time permit public servants to establish trade unions; reduce the minimum number required for the establishment of first-level and higher trade union associations; prohibit the imposition of penalties of imprisonment on the instigators of strikes and those who participate in them, in accordance with the principles of freedom of association; modify the requirement to be of Ecuadorian nationality to be a member of the executive committee of a works council; ensure that the dissolution of a works council is only possible by judicial authority; and abolish the prohibition placed upon trade unions from taking part in religious or political activities.

The Committee once again expresses the firm hope that all of its comments will be taken into account in the new legislation and that the frequently announced adoption of this legislation will take place in the near future.

The Committee requests the Government to inform it in its next report of any positive developments on this matter and trusts that it will finally be able to note that the new legislation has been brought into conformity with the principles and provisions of the Convention.

Furthermore, the Committee is addressing a request directly to the Government.

[The Government is asked to report in detail in 1997.]

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The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to:

- the denial of the right to organize of civilian employees of the armed forces (Case No. 1664 of the Committee on Freedom of Association);

- the loss of the guarantee of job security by persons participating in sympathy strikes (section 65 of Act No. 133);

- the implicit denial of the right to strike for federations and confederations (section 491 of the Labour Code); and

- the fact that the decision rests with the Ministry of Labour in the event of disagreement between the parties as to the minimum services to be maintained in the event of a strike in services considered by the Government to be essential, even if they are not necessarily so, including when the State is a party to the dispute (new section 503 of the Labour Code).

With regard to the first point, the Committee notes that the Supreme Court of Justice ruled that the enterprise TRANSNAVE and its workers were excluded from the scope of the Labour Code because they are governed by military laws and regulations, and that they have thus been denied the right to organize.

In this connection, the Committee reminds the Government that under Article 2 of the Convention workers and employers, without any distinction whatsoever, have the right to form organizations of their own choosing, with the one possible exception contemplated in Article 9, of members of the armed forces and the police force. The Committee considers that the civilian employees of TRANSNAVE should have the right to form, should they so wish, their own organizations. The Committee asks the Government to keep it informed of any measures adopted to ensure the right to organize of this category of workers.

As concerns the loss of the guarantee of job security for persons participating in sympathy strikes, the Committee, while noting the information provided by the Government that ten sympathy strikes were registered in 1992, would call attention to the principle according to which "the maintenance of the employment relationship is a normal consequence of recognition of the right to strike". In the Committee's view, legislation should provide for genuine protection in this respect, otherwise the right to strike may be devoid of content (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 139).

In this regard, the Committee considers that it should not be possible to sanction workers with dismissal for participating in sympathy strikes when "the initial strike they are supporting is itself lawful" (see 1994 General Survey, op. cit., paragraph 168).

As concerns the implicit denial of the right to strike for federations and confederations, the Committee takes due note that, according to the Government between November 1975 and the present, confederations have carried out 28 national strikes, even though the labour legislation does not expressly recognize this right for federations and confederations. The Committee therefore requests the Government to take measures to bring the legislation into conformity with the practice and with the principles of freedom of association.

As concerns the determination by the Ministry of Labour of minimum services to be maintained, in the event of a disagreement between the parties, in cases of strike in services considered by the Government to be essential, even if they are not necessarily so, the Committee notes the Government's information to the effect that between the time the new law came into force until October 1994, the Director-General of Labour has exercised this exceptional power, having first consulted the parties, on three occasions when there were disputes in food and hotel enterprises in the private sector. In this connection, the Committee recalls that it has always been of the view that the right to strike may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population (see 1994 General Survey, op. cit., paragraph 159), which is not the case of the food industry and hotels sector.

With regard to minimum services which are not considered to be essential in the strict sense, bearing in mind that a minimum service system restricts one of the essential means of pressure available to workers to defend their economic and social interests, the Committee considers that their organizations should be able, should they so wish, to participate in defining such a service, along with employers and the public authorities (see 1994 General Survey, op. cit., paragraph 161). In this regard, the Committee asks the Government to take steps in order that the legislation be amended in conformity with the above-mentioned principle.

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The Committee notes the Government's report and the discussions that took place at the Conference Committee in 1993, and recalls that its previous comments concerned:

-- the ban on public servants' forming unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

-- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55 of the Labour Code, new sections);

-- the penalties of imprisonment for instigators of and participants in collective work stoppages (Decree No. 105, 7 June 1967);

-- the requirement that members of the executive committees of works councils be Ecuadorian (section 455 of the Labour Code);

-- the dissolution by administrative decision of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

-- the prohibition placed on unions from taking part in religious or political activities and the requirement that this must be established in union statutes (section 443(11) of the Code).

With regard to the draft reforms of the legislation to which the Government committed itself, the Committee regrets to note that they have still not been submitted to the National Congress. The Ministry of Labour has therefore contacted the President of the National Congress, through various channels, asking that the procedure be expedited as a matter of urgency.

The Committee expresses the firm hope that account was taken, in the drafting of the above-mentioned reforms, of the proposals made during the 1985 direct contacts mission and of the Committee's other comments. It expresses the hope yet again that the reforms will be adopted in the near future.

The Committee asks the Government in its next report to provide information on any positive developments in this matter and trusts that it will be able to note that the new legislation is in keeping with the principles and provisions of the Convention.

The Committee is also addressing a request directly to the Government.

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The Committee notes the information supplied by the Government in its last report, the discussions that took place in the Conference Committee in 1992, and the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 1617 and 1664 (284th and 286th Reports of the above Committee, adopted by the Governing Body at its 254th and 255th meetings, November 1992 and February 1993). The Committee draws the Government's attention to the following:

1. Article 2 of the Convention:

- Denial of the right to organize of civilian employees of the armed forces.

The Committee takes note of Case No. 1664, which concerns the Government's refusal to register the Union of Ecuadorian Shipping Transport Workers (TRASNAVE).

The Committee points out, as did the Committee on Freedom of Association, that members of the armed forces to be excluded from the application of Article 9 of the Convention should be defined in a restrictive manner, and considers that the civilian employees of TRASNAVE should have the right to establish organizations of their own choosing without previous authorization. The Committee asks the Government to keep it informed of any measures adopted to ensure the right to organize of this category of workers.

2. Sympathy strikes. As regards section 65 of the new Act, No. 133 (procedures for calling sympathy strikes and loss of the guarantee of job security by persons joining such strikes), the Committee takes note of the following comments by the Government:

- in exercising the right to strike (even in the case of a sympathy strike), strikers may occupy the premises of the workplace for as long as the action lasts, and where operations are paralysed in that way the legislator is justified in prescribing in detail the procedure and the time-limits applicable to the occupation of the plant; and

- the object of the guarantee of security of tenure under section 496 of the Labour Code is to benefit the principal strikers, that is, the workers involved in a collective dispute.

The Committee observes, as did the Committee on Freedom of Association (Case No. 1617), that the new statutory rule limits the right to strike in sympathy to a three-day period. The same rule provides that those participating in a sympathy strike will not enjoy the benefit of the guarantee of security of tenure under section 496 of the Labour Code. The Committee regrets that the legislation limits sympathy strikes to three days, and suppresses the benefit of tenure which impairs the right of workers' organizations to formulate a programme of action, and recalls that workers' organizations should be able to have recourse to those strikes which are in support of legal strikes. The Committee requests the Government, as did the Committee on Freedom of Association, to take the necessary measures to guarantee the job security of workers who participate in strikes of this nature.

3. Impact of compulsory arbitration on the right to strike. With reference to the Committee's request to the Government to state whether compulsory arbitration (pursuant to sections 51-61 of Act No. 133) prevents the calling of a strike before or after the final decision of the Conciliation and Arbitration Court, the Committee notes the Government's reply and in particular that, under section 490 of the Labour Code, a strike may be called on any of the seven grounds listed in the above provision pending the Court's decision on the dispute before it; and that a strike may not be called during the compulsory mediation stage (section 56 of Act No. 133) which precedes the judicial proceedings in the Conciliation and Arbitration Court. However, the Government states that even in the latter case, there is a proviso in the above-mentioned section whereby on certain grounds (set out in section 490(1), (2) and (7)), a strike may also be called during the stage of "negotiations" or mediation.

With regard to the information requested by the Committee on whether the 20-day period that has to elapse between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature is added to the 37-day period of compulsory mediation and arbitration, the Committee duly notes that, according to the Government, the 20 days between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature are not added to the 37 days between the submission of the case and the final decision by the Conciliation and Arbitration Court of first instance. Collective dispute proceedings are not suspended by the 20-day period laid down in section 503, just as dispute settlement is not suspended by strikes which are a means of action recognized by law and, as such, constitute the most effective tool available to workers to exert pressure with a view to settling the conflict of interests inherent in collective labour disputes.

4. The right to strike of federations and confederations. In answer to the Committee's question as to whether federations and confederations have the right to call strikes, the Committee takes note of the Government's reply. None the less, as the Committee on Freedom of Association has pointed out (Case No. 1617), the legislation in force does not recognize the right to strike of federations and confederations (it only recognizes the works councils' right to declare a strike under section 491 of the Labour Code), and before the enactment of the amending Act No. 133 the trade union organizations were able lawfully to use the sympathy strike for carrying out strikes not only at enterprise level but also at higher (even provicial or nationwide) levels. In view of the implications, so far as strikes are concerned, of the amendments introduced by Act No. 133, the Committee requests the Government, as did the Committee on Freedom of Association, to take action with a view to the recognition, by law, of the federations' and confederations' right to strike.

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The Committee notes the discussions that took place at the Conference Committee in 1992 and the Government's report. It also notes the conclusions and recommendations of the Committee on Freedom of Association concerning Case No. 1617 (284th Report, paras. 1004 to 1010).

In its previous comments the Committee noted that the new Act No. 133, amending the Labour Code (published on 21 November 1991 in the Official Gazette) introduces the following provisions which may raise problems in the application of the Convention:

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55);

- the decision by the Ministry of Labour, when there is disagreement between the parties, on the minimum services to be provided in the event of a strike in the services considered as essential, even when the State is party to the dispute (new section 503).

With regard to the first point, the Government states that Article 8, paragraph 1, of the Convention stipulates that in exercising the right to organize workers must respect the law of the land, and that the Convention allows each member State to determine the minimum number of workers in accordance with its own circumstances. The Government considers that in view of the prevailing circumstances in the Ecuadorian economy and productive and social sectors, the minimum number of workers required to form trade unions had to be amended, because it was established in 1938 when industrial and labour development were at their very beginnings.

The Government also states that the dynamics of relation in the productive sector and labour law made it essential and urgent to adjust labour standards on the requisite minimum number of workers, as Ecuador is engaged in a process of subregional economic, customs and industrial integration.

With regard to the Government's reference to Article 8, paragraph 1, of the Convention, the Committee points out that account should also be taken of Article 8, paragraph 2, which states: "The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention".

Although the minimum number of 30 workers would be acceptable in the case sectoral trade unions, as it said in its previous comments, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.

As to the Ministry of Labour's responsibility for the decision on minimum services in the event of a strike, when there is disagreement between the parties, the Committee notes that, according to the information contained in the Government's report, Ecuadorian legislation considers that it is a fundamental obligation of the Government to ensure that essential minimum services are provided in the event of strikes in institutions that provide services in the social or public interest.

The Committee also notes that in 1991 the effects of a serious cholera epidemic in Ecuador made the provision of hospital and health services imperative and that there were none the less both regional and national strikes among health workers which completely paralysed medical care, which resulted in loss of life and created a serious risk and a state of emergency for the people deprived of this essential service.

The Committee agrees with the Government's view that preserving the right to life and health of citizens is a fundamental obligation in any society and particularly in societies which are on the brink of poverty, and it has always acknowledged that strikes may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population, such as hospital services.

However, the Committee considers that it would be preferable for the minimum services in public services which are not considered as essential in the strict sense of the term to be determined, where there is disagreement between the parties, by an independent body. The Committee asks the Government to provide information on the application in practice of this provision.

Furthermore, the Committee again notes with regret that the new legislation does not amend the following provisions which are incompatible with the requirements of the Convention, as the Committee has been pointing out for many years:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the requirement that members of the executive committees of works councils be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461);

- the prohibition placed on unions from taking part in religious or political activities (section 443(11)).

The Committee notes from the information supplied by the Government that, in accordance with the commitment made at the Conference Committee in June 1992, the Ministry of Labour requested the President of the National Congress in Communication No. 92081 of 21 July 1992 to initiate urgently the procedure for the adoption of the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, in order to eliminate the discrepancies between certain international labour Conventions ratified by the country. It also notes the reply from the Secretary-General of the National Congress to the effect that the procedure for the adoption of the draft amendments to the Labour Code requested by the Ministry would be initiated. The Committee asks the Government to keep it informed of progress in the adoption of these drafts by Parliament and to provide copies of these provisions once they have been adopted.

The Committee again urges the Government to take the necessary measures to bring law and practice into complete conformity with the Convention at an early date and asks it to provide detailed information in this respect in its next report.

The Committee is also addressing a direct request to the Government.

[The Government is asked to provide full particulars to the Conference at its 80th Session.]

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The Committee notes the adoption of Act No. 133 to reform the Labour Code, published 21 November 1991, and requests the Government to provide comments in its next report on the following questions:

1. Sympathy strikes. The Committee notes that the new Act, in its reference to sympathy strikes (new section 498), although it recognises the right to such strikes for a three-day period, provides that sympathy strikers shall not enjoy the guarantee of employment security set out in section 496 of the Labour Code.

The Committee requests the Government to clarify whether Act No. 133 has the effect, as it would appear from its wording, of granting workers the right to call sympathy strikes, while depriving them at the same time of the general guarantee of employment security and if so to amend it.

2. Impact of compulsory arbitration on the right to strike. The Committee notes that a compulsory mediation and arbitration procedure is established (of a combined duration of 37 days) by virtue of sections 56 and 61 of Act No. 133. The Committee requests the Government to state whether the compulsory arbitration procedure prevents the calling of a strike before or after the final decision of the Conciliation and Arbitration Court.

With regard to the 20-day period that has to elapse between the calling of a strike and the suspension of work in institutions and enterprises which provide services of a social or public nature, the Committee also requests the Government to state whether this period is added to the 37-day period of compulsory mediation and arbitration.

3. Right to strike in respect of federations and confederations. The Committee requests the Government to state whether federations and confederations have the right to call strikes.

The Committee hopes that it will have received the Government's reply in time for its next session.

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The Committee notes the Government's report, and particularly the adoption of Act No. 133 to reform the Labour Code published on 21 November 1991.

The Committee takes due note of the new wording of section 490 of the Labour Code, under which the number of cases in which a strike can be called has been extended (paragraphs 4 to 7); the Committee nevertheless notes that the new Act introduces the following provisions which may raise problems with regard to the application of the Convention:

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils. Even though the minimum number of 30 workers would be acceptable in the case of sectoral trade unions, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions;

- decision by the Ministry of Labour, in the event of disagreement between the parties, on the minimum services to be provided in the event of a strike in services that are considered to be essential, even when the State is a party to the dispute.

The Committee also regrets that the above text does not contain amendments relating to the following provisions, which it has been pointing out for many years are incompatible with the requirements of the Convention:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 433(11) of the Code).

The Committee notes the information supplied by the Government concerning the presentation on 22 May 1990 to the Secretariat of the National Congress by a member of the Congress of four draft amendments and two legal interpretations, the purpose of which is to bring the national legislation into conformity with the Convention. The Committee requests the Government to keep it informed of the progress of the draft texts before the legislature and to supply copies of them once they are adopted.

The Committee once again urges the Government to take the necessary measures in the near future to bring the law and practice into full conformity with the Convention and requests it to supply detailed information in this respect in its next report.

In addition, the Committee is addressing a request directly to the Government.

[The Government is asked to supply full particulars to the Conference at its 79th Session.]

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The Committee takes note of the Government's report.

1. For many years, the Committee has been referring to the following provisions of the legislation which were incompatible with the requirements of Conventions Nos. 87 and 98:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement that members of the executive committee of a works council be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443, paragraph 11, of the Code);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

The Committee recalls that, at the Government's request, an advisory mission visited Ecuador (November-December 1989) to examine, inter alia, questions relating to the application of Conventions Nos. 87 and 98. According to the mission's report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources, drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee noted that, according to the Government's report, these drafts were to be submitted immediately to Congress with the support of the Executive and its recommendation that they be adopted.

In this connection, the Government indicates in its latest report that the drafts prepared jointly by the above mission and the Government were formally submitted to the Secretariat of the Congress, but that it cannot guarantee that they will become law. Furthermore, the Government states in its report that, at the initiative of the Minister of Labour and Human Resources, labour experts are discussing the enactment of a new law to cover the unionisation of public employees in general.

The Committee stresses the importance of the provisions of the legislation which are incompatible with the requirements of Conventions Nos. 87 and 98, and asks the Government to report on progress with regard to the drafts submitted to Congress and on the status of the work to draft legislation on the trade union rights of public employees. It hopes that in its next report the Government will be able to indicate that there has been progress in the application of these Conventions.

2. Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in 1988. The CEDOC referred to a number of provisions which the Committee has already criticised and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the bye-laws of incipient organisations and, according to the CEDOC, decisions concerning refusal to register are illegally delegated to officials of a lower category.

The Government indicates that the CEDOC's comments refer to the period of the previous Government and that it is therefore virtually impossible for the present Government to give a detailed account of the activities of the Office of Trade Union Organisations during that period. The Government denies that decisions concerning registration are illegally delegated to officials of a lower grade.

In view of the Government's statement, the Committee invites the CEDOC to indicate whether its comments on the application of the Convention which it made when the former Government was in power still apply and, if so, to specify actual cases of infringements of the Convention.

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The Committee takes note of the Government's report and the discussions that took place in the Conference Committee in 1989.

The Committe notes that, at the Government's request, an advisory mission visited Ecuador from 27 November to 1 December 1989 to examine questions relating to the application of Conventions Nos. 87 and 98, among others. According to the mission report, the mission prepared jointly with the authorities of the Ministry of Labour and Human Resources drafts which would satisfy all the points raised by the Committee of Experts concerning freedom of association, and the authorities undertook to submit these texts to the appropriate parliamentary committees. The Committee notes that, according to the Government's report, these drafts are to be submitted immediately to Congress with the support of and recommendation for adoption expressed by the Executive.

The Committee has been pointing out that the following provisions of the legislation are incompatible with the requirements of the Convention:

- the prohibition placed on public servants from setting up trade union (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971), although they have the right to associate and to appoint their representatives (section 9(h) of this Act);

- the requirement to be Ecuadorian for membership of the executive committee of a works council (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461 of the Code);

- the prohibition placed on unions from taking part in religious or political activities, with the requirement that provisions to this effect shall be included in the by-laws of the unions (section 443(11) of the Code);

- the penalty of imprisonment laid down by Decree No. 105 (7 June 1967) for the instigators of collective work stoppages and for those who participate in them;

- the lack of protection against acts of anti-union discrimination at the time of recruitment.

Furthermore, the Committee had noted the comments on the application of this Convention sent by the Ecuadorian Confederation of Class Organisations (CEDOC) in a communication of 22 January 1988. The CEDOC referred to a number of provisions which the Committee has already criticised, and pointed out that requirements not provided for in the legislation are imposed on public sector workers subject to the Labour Code, if they wish to establish trade union organisations (for example, that they must present work contracts and daily wage slips). In addition, the authorities make unnecessary observations and changes to the by-laws of incipient organisations and, according to the CEDOC, decisions concerning refusals to register are illegally delegated to officials of a lower category. Subsequently, on 13 April 1989, the CEDOC sent further comments stressing that General Clause 12 of the State's 1988-89 Budget obstructs collective bargaining. The Committee regrets that the Government has not replied in detail on these points.

The Committee requests the Government to inform it of progress in the passage of the drafts that have been submitted to Congress and expresses the hope that in its next report the Government will be in a position to indicate progress in the application of Conventions Nos. 87 and 98 and that it will send a detailed reply to the CEDOC's comments.