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Protection of Wages Convention, 1949 (No. 95) - Ecuador (RATIFICATION: 1954)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC) and the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020, relating to the application of the ratified Conventions concerning wages, in which reference is made, inter alia, to the lack of exhaustive consultations in the process of determination of the minimum wage and the criteria which may be taken into account in this context. The Committee requests the Government to communicate its comments in this respect.

[The Government is asked to reply in full to the present comments in 2021.]

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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Article 4(2) of the Convention. Partial payment of wages in kind. In its previous comments, the Committee noted that section 95 of the Labour Code permits, in principle, the partial payment of wages in kind and that the national labour legislation does not contain express provisions regulating such payment. The Committee notes the Government’s statement in its report that the wages must be paid in the form of legal tender and no other forms of payment are allowed, as stipulated by section 87 of the Labour Code, and that the social benefits or payments in kind referred to by section 95 of the Labour Code only apply when the employer has to pay compensation to which the worker is entitled.

Article 10. Limits to attachment of wages. In its previous comments, the Committee noted that section 91 of the Labour Code provides that the attachment of wages is not permitted, except for the payment of alimony and that the general labour legislation does not contain any express provisions fixing an overall limit to the proportion of wages that may be subject to attachment. The Committee notes the Government’s statement that the courts determine alimony, taking account of the table of alimony allowances for minors issued by the National Council for Children and Young Persons (this table fixes the percentages which may be subject to attachment taking account of the worker’s income and the age of the beneficiary of alimony).

Article 14(b). Wage statements. The Committee previously noted that the general labour legislation does not contain express provisions providing for the issuance of a wage statement to the worker at the time of each payment of wages. The Committee notes the Government’s statement that the internal regulations of enterprises provide that payroll records must include details of workers’ income (wages, overtime payments, reserve fund, food allowance and transport, where applicable) and expenditure (personal contribution to the Ecuadorian Social Security Institute, income tax, credits, advances on wages). The Committee takes note of all these elements and asks the Government to continue to provide information on how it continues to ensure that the Convention is being applied in law and in practice.

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

Repetition
Articles 4(2), 10 and 14(b) of the Convention. Partial payment of wages in kind – Limits to attachment of wages – Wage statements. The Committee has been requesting the Government for several years to indicate the legal provisions, if any, implementing these Articles of the Convention. In the absence of the Government’s reply on these points, the Committee is obliged to draw the Government’s attention once again to the fact that the general labour legislation does not contain express provisions: (i) regulating the partial payment of wages in kind; (ii) fixing an overall limit to the proportion of wages that may be subject to attachment; and (iii) providing for the issuance of a wage statement at the time of each payment of wages. The Committee, therefore, asks the Government to take all necessary measures to ensure that full effect is given to these requirements of the Convention.
Article 12(1). Payment of wages on time and in full. The Committee recalls its previous comment in which it noted the observations of the National Union of Workers of the telephone services body of the Ecuadorian Telecommunications Institute (IETEL) – “17 de mayo” which had been received on 27 September 2005. According to the allegations of that union, more than 5,000 employees of three telecommunication companies had not been paid overtime for work performed on weekly rest days and public holidays during the period 1989–2005, the overall amount due totalling US$88 million. Noting that the Government has still not provided any specific explanations on the merits of the claims put forward by the union or on any action taken to follow up on these claims, the Committee hopes that the Government will provide together with its next report full particulars on the manner in which this dispute has been settled.

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

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Articles 4(2), 10 and 14(b) of the Convention. Partial payment of wages in kind – Limits to attachment of wages – Wage statements. The Committee has been requesting the Government for several years to indicate the legal provisions, if any, implementing these Articles of the Convention. In the absence of the Government’s reply on these points, the Committee is obliged to draw the Government’s attention once again to the fact that the general labour legislation does not contain express provisions: (i) regulating the partial payment of wages in kind; (ii) fixing an overall limit to the proportion of wages that may be subject to attachment; and (iii) providing for the issuance of a wage statement at the time of each payment of wages. The Committee, therefore, asks the Government to take all necessary measures to ensure that full effect is given to these requirements of the Convention.

Article 12(1). Payment of wages on time and in full. The Committee recalls its previous comment in which it noted the observations of the National Union of Workers of the telephone services body of the Ecuadorian Telecommunications Institute (IETEL) – “17 de mayo” which had been received on 27 September 2005. According to the allegations of that union, more than 5,000 employees of three telecommunication companies had not been paid overtime for work performed on weekly rest days and public holidays during the period 1989–2005, the overall amount due totalling US$88 million. Noting that the Government has still not provided any specific explanations on the merits of the claims put forward by the union or on any action taken to follow up on these claims, the Committee hopes that the Government will provide together with its next report full particulars on the manner in which this dispute has been settled.

[The Government is asked to reply in detail to the present comments in 2013.]

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The Committee notes the information in the Government’s report and would like to receive further details concerning the following points.

Article 4 of the Convention. Partial payment of wages in kind. The Committee notes the Government’s indications to the effect that the payment of wages in the form of liquor of high alcoholic content or of noxious drugs is not permitted and that the laws and regulations in force guarantee the following: (i) allowances in kind are appropriate for the personal use and benefit of the worker; and (ii) the value attributed to such allowances is fair and reasonable. In this regard, the Committee wishes to refer to paragraph 510 of its 2003 General Survey on protection of wages, in which it points out that some provisions of the Convention require specific practices to be prohibited or regulated in a certain way and thus require legislative provisions to this effect, while others merely require certain practices to be followed, and thus seem to leave scope for implementation by various means, including custom or practice. Recalling that the provisions of Article 4 of the Convention are not immediately binding and that the competent authorities are required to take the necessary measures of application to ensure their fulfilment, the Committee hopes that the Government will do its utmost to take such measures so as to bring its legislation into full conformity with the Convention in this regard.

Article 10. Attachment and assignment of wages. The Committee notes the information to the effect that, under article 35 of the Constitution and section 91 of the Labour Code, a worker’s wages may only be attached for the purpose of securing the payment of an alimony. With regard to the prohibition on the assignment of wages, the Committee understands that the National Congress will shortly analyse the reforms so as to take into consideration the Committee’s suggestions regarding this matter. In this connection, the Committee reminds the Government that it is important to set an overall limit for authorized attachments and assignments of wages to the extent necessary to guarantee workers and their families a minimum subsistence income. The Committee therefore asks the Government to ensure that effect is given to this provision of the Convention and to provide a copy of the relevant texts once they have been adopted.

Article 14(b). Informing workers of the particulars of their wages. The Committee notes the information indicating that section 42 of the Labour Code requires the employer to pay the amounts corresponding to the worker and that the Labour Inspectorate is responsible for checking that employers fulfil their obligations. In this regard, the Committee wishes to refer to paragraph 508 of its 2003 General Survey, according to which the obligation of employers to keep workers informed of the wage conditions applicable during the employment relationship is based on the idea that the worker should put his/her labour at the service of the employer in full cognizance of the exact conditions, form and amount of payment that he/she expects to receive in return. The Committee requests the Government to specify how it ensures that workers are informed, at the time of each payment of wages, of the particulars of their wages for the pay period concerned (for example, the net and gross amount of the wages, the deductions made and the reasons why, etc.), in accordance with this provision of the Convention.

Part V of the report form. The Committee would be grateful if the Government would provide general information on the manner in which the Convention is applied in practice, including, for instance, extracts from inspection service reports indicating the number of infringements reported and the penalties imposed in relation to wage protection, details of the conditions and limits of wage payments in kind, information on any difficulties encountered in ensuring the regular payment of wages and any other particulars relating to the application and fulfilment of the provisions of the Convention.

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The Committee notes the observations of the National Union of Workers of the telephone services body of the Ecuadorian Telecommunications Institute (IETEL) – “17 de mayo” – received on 27 September 2005. The union alleges that more than 5,000 employees of the communications companies EMETEL S.A., ANDINATEL S.A. and PACIFICTEL S.A. have not been paid for overtime worked on weekly rest days and other holidays between 1 January 1989 and 31 August 2005 and demands the payment of 15 per cent of the amount corresponding to some 6,000 hours of overtime worked (approximately US$88 million). The union also refers to the views of the sectoral committees of telecommunications technicians, according to which a telephone operator’s working day should not exceed four hours, for reasons relating to workers’ health.

In its reply, the Government indicated that the monitoring of hours of work falls within the competence of the regional labour directorate, through the Labour Inspectorate, and that no complaint lodged by the “17 de mayo” union with regard to the implementation of the wage policy is currently under investigation.

While recalling that the notion of wages, as defined in Article 1 of the Convention, means any remuneration for work done or services rendered and therefore includes overtime, the Committee requires more detailed and specific information – particularly concerning the changes made to the statute of the national telecommunications body between 1992 and 1997 – both on the nature and legal basis of the claims put forward by the union, and also on how the Government deals with such claims.

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The Committee notes with interest the information contained in the Government’s report, in particular the adoption of the new Labour Code of 1997, as well as the provisions of the 1998 Political Constitution concerning labour remuneration.

Article 4 of the Convention. The Committee notes that, by virtue of article 35(14) of the Political Constitution, as well as articles 95 and 343 of the Labour Code, the partial payment of wages in kind is in principle permitted subject to certain conditions. The Committee recalls in this connection that: (a) the prohibition of payment of wages in the form of liquors of high alcoholic content or noxious drugs is an absolute requirement under Article 4, paragraph 1, of the Convention; and (b) national laws and regulations have to provide for measures to ensure that the allowances in kind are appropriate for the personal use and benefit of the worker and his/her family and that the value attributed to such allowances is fair and reasonable, as set forth under Article 4, paragraph 2, of the Convention. The Committee trusts that the Government will not fail to take whatever steps may be necessary to ensure that the provisions of the Convention are fully applied in this respect.

Article 10. The Committee recalls that the Convention provides for the protection of workers’ wages not only against attachment but also against assignment, and therefore asks the Government to supply information on the measures taken or contemplated to ensure the application of the Convention in this respect. The Committee points out that national legislation has to determine the proportion of the wages which shall be immune from assignment enabling workers and their families to satisfy their basic needs, and therefore ventures to draw the Government’s attention to the possibility of introducing an overall limit with respect to assignment of wages similar to that established under articles 44(b) and 90 of the Labour Code with respect to authorized deductions.

Article 14(b). The Committee notes that the Labour Code contains no provision regarding the obligation of the employer to provide workers at the time of each payment of wages with statements of earnings indicating in an appropriate and easily understandable manner the particulars of their wages for the pay period concerned. The Committee hopes that the Government will take all necessary action to give effect to this provision of the Convention.

Part V of the report form. The Committee would be grateful to the Government for providing general information on the manner in which the Convention is applied in practice, including, for instance, extracts from inspection reports, details on the conditions and extent of wage payment in kind, information on any difficulties encountered in ensuring the regular payment of wages and any other particulars bearing on the fulfilment of the requirements of the Convention.