Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of 24 August 2009 by the National Federation of Workers of the Enterprise “Petróleos del Ecuador” (FETRAPEC) alleging that some provisions of the new Constitution of Ecuador are inconsistent with the Convention. The Committee also notes the comments of 26 August 2009 by the International Trade Union Confederation (ITUC) referring to legislative issues raised by the Committee, and particularly certain provisions of the new Constitution of Ecuador and to the following matters: anti-union repression and intimidation of trade union officers and workers in a telecommunications enterprise; the dismissal of four trade union officers in the petroleum sector; lengthy proceedings; restriction of the subjects that may be negotiated collectively in cement enterprises and electricity and drinking water supply enterprises; interference by employers who encourage the establishment of “solidarista” organizations and acts of anti-union persecution against union officials in the judiciary which are being examined by the Committee on Freedom of Association. The Committee requests the Government to send its observations on these matters and on the ITUC’s comments of 28 August 2007 asserting that the law does not provide for sufficiently dissuasive penalties for breaches of labour and trade union law.

The Committee furthermore notes with regret that the Government has not sent its observations on the comments of 10 August 2006 by the ITUC concerning the lack of collective bargaining rights for subcontracted or outsourced workers, the use of “blacklists” in Los Ríos Province and anti-union dismissals. Observing that, according to the ITUC’s latest comments, subcontracting persists through so-called “complementary services”, the Committee reminds the Government that the right to negotiate working conditions freely with employers is an essential component of freedom of association and that all workers, with the possible exception of the armed forces, the police and persons engaged in the administration of the State, are covered by the Convention and particularly Article 4. In these circumstances, the Committee requests the Government to ensure that workers performing “complementary services” are able fully to exercise trade union rights and, in particular, bargain collectively.

Furthermore, with regard to the alleged use of “blacklists” in one province, the Committee points out that the practice of placing trade union officials or members on “blacklists” is a serious threat to the free exercise of trade union rights, and requests the Government to hold an inquiry and, if the allegation of blacklisting is confirmed, to take the necessary steps to ensure that this practice is sanctioned by sufficiently dissuasive penalties.

New Constitution of Ecuador

The Committee notes that on 28 September 2008 a new Constitution was adopted and that it entered into force on 20 October 2008.

The Committee notes that, in the context of the Constitution’s adoption, the Constituent Assembly passed a number of “Constituent Resolutions”, which are mandatory decisions of a “supraconstitutional” nature and are not subject to oversight or challenge by any other authority (including judicial review). The Committee notes that the Committee on Freedom of Association examined the conformity of these resolutions with the provisions of the Convention in the context of Case No. 2684. The Committee refers in particular to:

–           Constituent Resolutions Nos 002 and 004 which place a ceiling on public sector pay, compensation for unfair dismissal and other grounds of termination of the employment relationship, and ban supplementary private pension funds that involve input from state funds (Executive Decree No. 1406 provides that no state resources shall be contributed to supplementary funds). The Committee is of the view that these provisions, which apply even when public sector enterprises have sufficient income, impose permanent limitations on collective bargaining that are incompatible with the Convention. In these circumstances, the Committee requests the Government to take the necessary steps for the removal of these limitations and for the reinstatement of the right to collective bargaining on all subjects that affect the working and living conditions of workers.

–           Constituent Resolution No. 008 establishes the need to revise clauses in public sector contracts that contain abuses and undue privileges, and Ministerial Order No. 00080 and Order No. 00155A lay down administrative procedures for the automatic adjustment and revision of work contracts that include such clauses. The Committee points out in this connection that the checking of clauses in public sector agreements for possible abuses should be done not by the administrative authority – which in the public sector is both judge and party – but by the judicial authority, and only in extremely serious cases. The Committee is of the view that regulations that allow the administrative authority unilaterally to cancel or reduce the clauses of a collective agreement are contrary to the principle of free and voluntary bargaining. In these circumstances, the Committee requests the Government to take the necessary measures to repeal or amend Ministerial Order No. 00080 and Order No. 00155A and to indicate whether Constituent Resolution No. 008 is compatible with judicial review of certain clauses in public sector collective agreements that may contain abuses.

The Committee notes the conclusions of the Committee on Freedom of Association in Case No. 2684 objecting to the unilateral review by the administrative authority of collective agreements it deemed abusive in the petroleum and health sectors. The Committee requests the Government to indicate whether the constituent resolutions abovementioned and the provisions adopted in its development are still in force or whether they have been modified or repealed by the new Constitution.

Pending legislative issues

The Committee again reminds the Government that for several years it has been commenting on the following matters:

–           The need to include in the legislation provisions that ensure protection against acts of anti-union discrimination at the time of recruitment. The Committee notes the Government’s statement in its report that the protection is ensured by virtue of section 44(f) of the Labour Code which provides that it is prohibited “to require a worker, by whatever means, to leave the association to which he belongs …”. The Committee points out that this protection covers anti-union discrimination: (1) at the time of recruitment; (2) in the course of employment; and (3) upon termination of the employment relationship, and includes all measures that are discriminatory in nature (whether dismissals, transfers, relegations in grade or any other measures adversely affecting the worker).

–           The need to amend section 229, second paragraph, of the Labour Code respecting the submission of the draft collective agreement, so that minority trade union organizations with a membership amounting to no more than 50 per cent of the workers subject to the Labour Code may, on their own or jointly (when there is no majority union representing all the workers), negotiate on behalf of their own members.

–           The need for teachers and heads of education establishments in the public sector and for staff performing technical and vocational duties in the education sector who are governed by the Higher Education Act (Act No. 2000-16) and the Act on Educational Careers and Posts in the Public Teaching Sector (Act No. 94 of 1990) to enjoy the right to collective bargaining. The Committee notes that in this connection that the Government refers to articles 96–99 of the new Constitution of Ecuador. The Committee also observes that Constituent Resolution No. 008 guarantees collective bargaining in public sector institutions. It requests the Government to indicate whether this guarantee extends to public sector teaching staff.

Noting the Government’s statement that the National Assembly is working on amendments to various laws including a proposal for a Labour Code Reform Act, a proposal for a Basic Public Service Act and a proposal for a Basic Act on Public Enterprises, the Committee expresses the hope that these will take full account of the provisions of the Convention recognizing the right to collective bargaining of public sector organizations and adequate protection against acts of anti-union discrimination and interference, with sufficiently dissuasive sanctions. It reminds the Government that it may seek technical assistance from the ILO in proceeding with the amendment of the Labour Code and the Public Service Act.