Informe definitivo - Informe núm. 120, 1971

1. 131. The Committee has previously examined this case at its session held in February 1970, when it submitted an interim report to the Governing Body which is contained in paragraphs 369 to 378 of its 116th Report.
2. 132. Ecuador has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 133. The complaint, which is in telegraphic form, consists of allegations that certain members of the complainant organisation were persecuted and imprisoned for having submitted petitions for an improvement in their conditions and that their legal adviser, Dr. Guillermo Guerrero Villagómez, has likewise been imprisoned. The Government, in its reply, stated that certain employees in the Subdirectorate for Flight Protection had submitted a series of petitions for better conditions and that the General Directorate of Civil Aviation had arranged meetings with the staff of the Subdirectorate in question " for the purpose of giving an account both of the action which it had taken on behalf of its employees and of the obligations of the latter towards the Directorate ". These meetings, continued the Government, were never held, as the staff was prevented from attending by certain other employees of the Subdirectorate, who were punished for their actions. In consequence, some of the staff of the Subdirectorate left their work in contravention of the provisions of the Constitution, whereupon the authorities took certain measures, as provided for by law, in order to avoid the paralysis of commercial air transport activities. The Government further stated that civilian employees of the General Directorate of Civil Aviation constituted a special class of employees subject, under the Political Constitution, to military jurisdiction and, in respect of discipline, to the regulations of the Directorate. As to the allegation that the legal adviser to the Association had been imprisoned, the Government stated that the Directorate knows of no order for the arrest of Dr. Villagómez, nor of any other members of the Association, and that, while the Directorate was always prepared to discuss the demands of its staff, it was also determined to maintain order and would not allow commercial air services to be disrupted.
2. 134. The Committee, when examining the case at its meeting in February 1970, pointed out that the presentation of claims by these employees through the intermediary of an industrial association had not led to the initiation of talks with that organisation, but merely to the calling together of the workers concerned by the General Directorate of Civil Aviation with a view to giving them an account " both of the action which it had taken on behalf of its employees and of the obligations of the latter towards the Directorate ". Further, the Committee considered that civil aviation personnel could not be deemed by virtue of the functions they performed to belong to the armed forces with a view to excluding them from the guarantees provided for under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In the Committee's view, civil aviation personnel were public servants who were automatically covered by the provisions of Convention No. 87, which contains no exception clause for the case of public servants. Nor should they be excluded from the guarantees afforded under Convention No. 98, for although Article 6 of this Convention allows for the exclusion of " public servants engaged in the administration of the State ", civil aviation personnel clearly do not fall within the scope of this exception. The recommendations of the Committee, as set forth in paragraph 379 of its 116th Report and approved by the Governing Body at its 178th Session (March 1970), read as follows:
3. 379. In these circumstances the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to the principles and standards cited above and to invite the Government to consider the adoption of such measures as are necessary to promote voluntary negotiation with a view to the regulation of the terms and conditions of employment of workers employed by the commercial air transport service;
   • (b) to draw the attention of the Committee of Experts on the Application of Conventions and Recommendations to this case;
   • (c) with regard to the allegations relating to the arrest of the legal adviser and various members of the Association of Aeronautical Technicians of Ecuador-since the Director-General of Civil Aviation declares that he has no knowledge of the order for these arrests-to request the Government to enlighten it as to the situation in which these persons find themselves at present, on the understanding that the Committee will report again as soon as it is in possession of this information.
4. 135. By a communication dated 28 May 1970, the Government sent its observations on the points raised by the Committee in paragraph 379 of its 116th Report (above). The Government declares that the matters referred to in the complaint have been settled, that the employees in question are now back at work and that the economic sanctions which had been imposed on them have been lifted. The Government further states that the Association of Aeronautical Technicians has no connection with the General Directorate of Civil Aviation, and this, together with the fact that the complaint is not supported by any documentary evidence, and that the matter has not been pursued further at the national level, has convinced the Government that the complaint was filed purely to harm the General Directorate of Civil Aviation and the Ecuadorian Air Force.
5. 136. As regards the specific points raised by the Committee in its interim report, the Government declares that Dr. Guillermo Guerrero Villagómez was imprisoned as a result of an error committed by the police, but that he was immediately released. Further, to the best of its knowledge, no members of the complainant association have been persecuted. As regards the recommendations contained in subparagraph (a) of paragraph 379 of the Committee's interim report, the Government states that the General Directorate of Civil Aviation maintains the best possible relations with a number of organisations, but that the actual relations between the Directorate and its staff are governed by staff regulations which have been drawn up in accordance with the provisions of section 3 of the Armed Forces Personnel Act. The Government also states that it complies with all International Labour Conventions and treats all lawfully constituted employees' organisations with the respect due to them, as evidence of which it indicates that at present there exists an association of the Directorate's own staff approved by the Minister of Labour which is allowed to carry on its activities freely. In conclusion, the Government recalls that Conventions Nos. 87 and 98, to which reference is made in the interim report, provide for the exemption of members of the armed forces from the guarantees provided for therein, and that, under section 250 of the Political Constitution of the State of Ecuador, employees of the General Directorate of Civil Aviation form part of the armed forces of the country.

B. B. The Committee's conclusions

1. 137. From the information before it, the Committee considers that the essential problem of this case concerns the representation of the employees of the Directorate by an occupational organisation for the purposes of collective bargaining. The Directorate had not recognised the Association of Aeronautical Technicians, which had presented claims on behalf of these employees, and referred to various provisions of national legislation according to which the workers concerned were subject to military jurisdiction.
2. 138. The Committee is of the opinion that, while the employees in question are employed by the State, they do not fall within the special subcategory of " public servants engaged in the administration of the State " and should therefore enjoy the various guarantees provided for in Conventions Nos. 87 and 98. It is, moreover, the Committee's view that, had the Directorate entered into discussions with the Association, the events which had led to the filing of the complaint might never have occurred.
3. 139. The Committee notes that in the interim the employees of the Directorate have established an association of their own, which appears to be recognised by the Directorate. However, the Committee also notes that the Government once again draws attention to the fact that the employees of the Directorate form part of the armed forces and that, in consequence, they may be excluded from the provisions of Conventions Nos. 87 and 98. From this it would not seem that the Government would be prepared to extend recognition of the above-mentioned association to recognition for collective bargaining purposes. While the Committee appreciates that this situation may flow from Constitutional provisions at present in force in Ecuador, it must, nevertheless, insist on the views expressed in paragraphs 134 and 138 above.