Informe provisional - Informe núm. 391, Octubre 2019

1. 225. The Committee last examined this case (submitted in May 2015) at its March 2017 meeting, when it presented an interim report to the Governing Body [see 381st Report, approved by the Governing Body at its 329th Session (March 2017), paras 420–442].
2. 226. The Trade Union Association of Banana Plantation, Agricultural and Rural Workers (ASTAC) sent additional allegations by communications of 30 March and 14 December 2017, 5 January, 7 March, 21 May, 18 September and 1 December 2018, and 16 June 2019.
3. 227. The Government sent its reply by communications of 14 March, 25 July, 22 October and 3 August 2018, and 18 February and 8 July 2019.
4. 228. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Rural Workers’ Organisations Convention, 1975 (No. 141).

A. Previous examination of the case

1. 229. In its previous examination of the case in March 2017, the Committee made the following recommendations [see 381st Report, para. 442]:
   • (a) The Committee requests the Government to take the necessary measures to ensure that national legislation complies with the principles of freedom of association concerning the minimum membership required to establish a trade union at the enterprise level and the possibility of setting up primary-level trade unions comprising workers from various companies. The Committee refers the legislative aspects of this case to the CEACR.
   • (b) The Committee requests the Government to take the necessary measures to enable the registration of ASTAC without delay, and to ensure that, in the meantime, the necessary guarantees and protections are provided to its members.
   • (c) The Committee requests the Government to ensure that, in the near future, an independent inquiry is held into the various anti-union acts which took place around the establishment of the company trade union and to provide information on the inquiry’s findings and of any action taken by the public authorities, including in relation to the application to register the trade union.
   • (d) The Committee trusts that, in the near future, the criminal complaint filed by the general secretary of the aforementioned company trade union will lead to the appropriate inquiry and decisions by the pertinent authorities. The Committee requests the Government to keep it informed in this regard.
   • (e) The Committee requests the Government to ensure that, through the pertinent employers’ organization, the abovementioned enterprise has an opportunity, if it so wishes, to express its opinion on the allegations regarding the setting up of a company trade union within it.

B. The complainants’ additional allegations

1. 230. In its various communications, ASTAC presents additional allegations related to aggressive and discriminatory practices used in the banana sector against any attempts to unionize, acts of anti-union discrimination (including anti-union dismissals), acts of retaliation against its leaders and members, and death threats.
2. 231. Specifically, the complainant organization alleges that:
   • (a) in March 2017, 21 ASTAC members were dismissed in retaliation for verbal complaints made during the site visit of the Office of the Ombudsperson to the Sitio Nuevo plantation belonging to the Manobal Group. On 28March 2018, the complainant organization filed a complaint against the enterprise for retaliation;
   • (b) on 24 March 2017, another plantation in the sector belonging to the same enterprise group refused entry to the Office of the Ombudsperson and the complainant organization;
   • (c) ASTAC leaders and members fear for their physical safety as a result of the aggressive practices in the banana sector, which include the hiring of contract killers;
   • (d) on 4 October 2017, the Orodelti plantation dismissed seven ASTAC members on anti-union grounds and circulated a blacklist among the plantations in the sector. The complainant makes specific reference to the situation of one member who, after being dismissed, was denied access to his home, which was on another plantation. A complaint was filed concerning these actions;
   • (e) on 29 November 2017, ten union leaders of the complainant organization in the Álamos plantation of the Noboa Corporation were dismissed, 200 workers were pressurized to leave the union, and the six workers who refused to leave the union were dismissed;
   • (f) on 23 February 2018, the general secretary of ASTAC, Mr Jorge Washington Acosta Orellana, filed a report of death threats with the State Public Prosecutor’s Office. In addition, the complainant organization reported that various unknown individuals had been following its leaders;
   • (g) on 27 February 2018, the Office of the Ombudsperson admitted a new petition from the complainant organization in which it reports, among others, obstruction of the establishment of a branch-level trade union able to represent the workers in the banana sector; and
   • (h) in 2018, a total of 150 ASTAC members were dismissed in five different plantations (the Álamos plantation, ACMAD-OTISGRAFT, the María Isabel plantation, the La Julia plantation and the Agrilechos/REYBANPAC plantation) for having attempted to form enterprise trade unions or in retaliation for reporting the working conditions in their respective places of work. On 8 November, the complainant organization filed a report of anti-union discrimination against the last-named plantation.
3. 232. As to its registration, ASTAC reports that although the Government indicated that it would be handled directly by the Ministry of Labour, to date no representative of the organization has been able to meet with the Ministry to discuss the registration of the union and the situation of the workers in the banana sector in Ecuador. ASTAC points out that the Ministry of Labour has recognized two branch-level unions in the horticulture and domestic work sectors, and expresses the view that the Ministry of Labour has not registered the union for political and personal reasons, given that the father of the then Minister of Labour held the post of executive director of the largest association of the banana industry, and that the banana industry had wide decision-making power in the country’s policies, given the importance of the sector to the economy of Ecuador.
4. 233. Lastly, ASTAC reports that the Ministry of Labour’s issuance of three ministerial agreements between April 2017 and May 2018 (MDT-2017-0029 governing labour relations specifically in the agriculture, livestock and agro-industrial sector; MDT 2018-0096 establishing a special employment contract for part-time activities in the agriculture sector; and MDT-2018-0074 establishing a special employment contract for part-time activities in the banana sector) constitutes a serious deterioration in freedom of association, the right to collective bargaining, and the right to fair remuneration and a minimum wage. The organization considers that the three agreements: (i) exclude collective bargaining from the sources of regulating contractual arrangements; (ii) by establishing that certain elements of the wage and working day should be determined by agreement between the parties, are individualizing labour relations and ignoring the role of the trade union organizations and collective bargaining; and (iii) by endorsing the signature of temporary contracts for permanent activities and by establishing that the employer may unilaterally terminate the employment contract, the special discontinuous part-time contracts for the banana sector may be used by the employer for anti-union purposes and also expose the workers to job instability.

C. The Government’s reply

1. 234. By its communications of 14 March, 25 July, 22 October and 3 August 2018, and 18 February and 8 July 2019, the Governments transmits its observations on the Committee’s recommendations and ASTAC’s additional allegations.
2. 235. As to the minimum membership required to establish a trade union at the enterprise level and the possibility of setting up primary-level trade unions comprising workers from various enterprises, the Government states that: (i) on 23 October 2017, Executive Decree No. 193 was issued, which sets forth the regulations for the granting of legal personality to social organizations with a view to minimizing superfluous administrative requirements for such civil organizations and facilitating their management and development; (ii) on 13 March 2018, a proposal to reform Ministerial Agreement No. 0130 of 2013 – article 2(2) of which set the required minimum number of members to form a trade union at 30 – was issued, replacing that number with an indication that the minimum membership would be established by the Labour Code; (iii) the National Labour and Wage Board, a tripartite advisory body, will have responsibility for defining the minimum number of members and the criteria for defining it; and (iv) the proposed Basic Code of Labour and Employment Promotion is in the drafting process.
3. 236. As to ASTAC’s registration as a trade union organization, the Government reiterates that the application for approval and union’s application for registration was rejected in 2014 because the 31 founder members did not have a dependent relationship with only one employer, and the application for approval of status and granting of legal personality to recognize ASTAC was denied in 2016 because it was flawed in form and substance. The Government adds that: (i) on 9 February 2017, the Ministry of Agriculture and Livestock Farming granted legal personality to ASTAC as an agro-production organization; (ii) to date, the Government has no information indicating that the said organization filed any further application to found a trade union organization or that it filed any administrative or legal appeals to continue with the formal process for administrative recognition; and (iii) the Government invited ASTAC to submit a new application in accordance with the statutory requirements. As to ASTAC’s allegation that the Ministry of Labour refused to engage in dialogue with the organization’s representatives, the Government states that the Ministry of Labour did not decline to engage in dialogue with the representatives of the organization; on the contrary, it attended all the meetings with the various authorities and even provided advice on the framework of labour law which must govern trade union organizations, clarifying any doubts as to the regulatory content of the recently issued ministerial agreements.
4. 237. As to the purported death threats against ASTAC’s general coordinator, Mr Jorge Acosta, the Government states that: (i) under article 75 of the Constitution, every person shall be entitled to free access to justice and the effective, impartial and expeditious protection of his or her rights; (ii) the Government of Ecuador has an obligation to safeguard the wellbeing of its citizens; however, to that end, Ecuadorian citizens must make an application to the relevant legal entity, where it will be duly attended to; and (iii) the electronic system of the Council of the Judiciary contains no records of any criminal complaint from the general coordinator of ASTAC, only an application for protection that had been filed.
5. 238. As to the establishment of an independent inquiry into the various anti-union acts which took place around the founding of the 7 February Association of Banana Plantation Workers, the Government indicates that the request to launch an inquiry in relation to anti-union acts must be substantiated on the basis of a complaint from the applicant so as to identify the acts violating the alleged constitutional rights, and also indicates that the Ministry of Labour does not have any record of reports of actions directed against the establishment of the association.
6. 239. The Government also transmits the observations of the fruit company Frutas Selectas S.A. (FRUTSESA) (“the fruit company”), which indicates that after conducting a thorough investigation into the allegations, it determined that: the trade union associations to which the Committee refers could not be found; the complaint is illegitimate and misleading; their officials and members were unknown to the entity; it violates the constitutional principle of respect for legal certainty; and in view of the inability to identify a legitimate complainant, it considered that it did not have to make any further comment. In addition, it indicated that it was the Ministry of Labour that did not approve the establishment of an enterprise trade union because the minimum membership had not been attained. As to the complaint of intimidation filed by Mr Luis Ochoa, general secretary of the 7 February Association of Banana Plantation Workers, against Mr Tito Gentillini, the enterprise indicates that the latter does not represent the enterprise and had merely worked as an external consultant.
7. 240. As to the issuance of the three ministerial agreements, the Government indicates that Ecuadorian legislation fully safeguards freedom of association, the right to organize and the right to a fair wage. The Government states that, although the legislature sought to provide workers with indefinite job stability, with a view to adapting to the needs of each production sector the legislature had left it to the employer’s discretion to use other contractual arrangements such as temporary, casual or seasonal contracts (article 11 of the Labour Code). In addition, in accordance with article 23.1 of the Labour Code, the Ministry of Labour is empowered to allow special employment relationships not provided for under the Code, including in the agriculture sector. Consequently, in view of the high percentage of informality in the agricultural sector and the specific needs of the sector, which has specific periods for planting and harvesting that do not correspond to the statutory hours of work established in the Labour Code, the Ministry of Labour decided to adapt to the economic, social and legal reality of the agriculture and banana sectors and to issue the aforementioned ministerial agreements.
8. 241. The Government affirms that those ministerial agreements do not contain any prohibition of or restrictions on freedom of association, as their purpose is to regulate existing labour relations and to prevent precariousness of labour rights. As to the right to fair remuneration, the Government indicates that the minimum wage is set in the sectoral wage scale issued by the Ministry of Labour every year and that it was established through social dialogue between the lawfully constituted workers’ organizations at the national level, employers and the Ministry of Labour. However, the Government considers that the minimum pay set by the sectoral wage scale may be improved by agreement between the parties and emphasizes that the labour organizations are a key part of the continuous improvement of remuneration in Ecuador. Furthermore, the Government states that the ministerial agreements allow the possibility to maintain discontinuous stability for workers, analogous to the seasonal contract contemplated in the Labour Code in force, as the employer may call on its workers in each cycle or phase of productivity. Concerning specifically the purported restrictions on the right to freedom of association, the Government affirms that that right is protected under the Constitution. Lastly, the Government makes reference to an application filed by ASTAC on 22 August 2018 for constitutional review of the aforementioned agreements, and indicates that, on 2 May 2019, the Constitutional Court denied the application on the grounds that the applicant had failed to argue how the aforementioned ministerial agreements violated the Constitution and the international conventions ratified by Ecuador.

D. The Committee’s conclusions

1. 242. The Committee observes that, in this case, the complainants denounce, firstly, the refusal to register a trade union organization of banana plantation workers comprising workers from various companies in the sector and anti-union action against the leaders and members of that union and, secondly, anti-union action aimed at preventing the establishment of a nascent works union in an enterprise in the same sector.
2. 243. Firstly, the Committee recalls that, in its previous examination of the case, it requested the Government to take the necessary measures to ensure that national legislation complies with the principles of freedom of association concerning the minimum membership required to establish a trade union at the enterprise level and the possibility of setting up primary-level trade unions comprising workers from various companies, and that it referred the legislative aspects of the case to the CEACR. The Committee notes that the information provided by the Government concerning the regulations for the granting of legal personality to social organizations and the proposed reform of Ministerial Agreement No. 0130 of 2013 and of the Labour Code to assign responsibility to the National Labour and Wage Board, a tripartite advisory body, for defining the number of workers and criteria for determining the number. The Committee refers that information to the attention of the CEACR, to which it has referred the legislative aspects of this case.
3. 244. Secondly, the Committee recalls that in its previous examination of the case, it requested the Government to take the necessary measures to allow the registration of ASTAC. The Committee notes that ASTAC reports that, despite the Committee’s recommendations, the Ministry of Labour has still not met with the union, that the Ministry did recognize two branch-level unions (in the horticultural and domestic work sectors) and that certain matters of a political and social nature were impeding the establishment of the trade union organization. The Committee notes that, in turn, the Government reiterates that the application for the approval and registration of the articles of association of ASTAC was rejected because the 31 founder members were not in a dependent employment relationship with only one employer and that the application for approval of status and granting of legal personality to recognize ASTAC as a social organization was rejected in 2016 because it was flawed in form and substance. The Government adds that: (i) on 9 February 2017, the Ministry of Agriculture and Livestock Farming granted legal personality to ASTAC as an agro-production organization; (ii) the Government has no record of ASTAC having filed administrative or legal appeals with a view to continuing the formal process for administrative recognition or a further application to establish a trade union organization; and (iii) denies that the Ministry of Labour declined to meet with ASTAC leaders and states that it even advised them on the recent legislative changes that affect the banana sector.
4. 245. The Committee notes with regret that because its members do not work for the same employer, ASTAC has still not been recognized as a trade union organization. While pointing out once again that branch-level trade unions have been recognized in other sectors in the country, the Committee recalls that, in its previous examination of the case, it noted with concern that many agricultural workers in Ecuador not only find it impossible to set up company unions owing to the minimum membership requirement which is conflicting with the structure of a sector where most production units are small, but that they were also seeing their efforts to overcome that obstacle by grouping together in sectoral organizations being frustrated. The Committee observes that, on the one hand, ASTAC states that no representatives of its organization have managed to meet with the Ministry of Labour to discuss the union’s registration and the situation of workers in the banana sector in Ecuador, while, on the other hand, the Government indicates that the Ministry of Labour did not decline to engage in dialogue with the representatives of that trade union organization and even provided it with advice. In addition, while noting the Government’s indication that ASTAC has not challenged the decision denying its registration, the Committee draws the Government’s attention to the fact that one of the main subject matters of this complaint concerns the registration of ASTAC and the fact that it is impossible under the law to form branch-level trade unions. Recalling that recognizing ASTAC as an agro production organization does not guarantee that its trade union rights are protected, the Committee once again requests the Government to take the necessary measures to ensure that ASTAC is registered as a trade union organization if the organization submits a further request and to ensure that, in the meantime, the necessary guarantees and protections are provided to its members.
5. 246. Thirdly, the Committee recalls that, in its previous examination of the case, the Committee requested the Government to ensure that an independent inquiry is held in the near future into the various anti-union acts, including dismissals and threats, which the 7 February Association of Banana Plantation Workers had undergone in the fruit company, and to inform the Committee of the inquiry’s findings. The Committee notes that the Government indicates that a request to initiate an inquiry must be substantiated on the basis of a complaint from the applicant and that the Ministry of Labour indicates that it has no record of any complaints concerning actions directed against the founding of the company union.
6. 247. In addition, the Committee notes the new information communicated by the complainant reporting a series of anti-union dismissals in various plantations in the sector, acts of intimidation and the circulation of a blacklist with the names of the members of ASTAC, and observes that the Government does not make any specific observations in relation to the alleged anti-union acts, including anti-union dismissals, retaliatory acts and blacklisting. The Committee observes that the appendices provided by the complainant show that it filed two complaints, in 2010 and 2016, with the Office of the Ombudsperson; that the Office of the Ombudsperson conducted two site visits on the basis of a report from ASTAC members; and that on 8 November 2017, and 28 March and 8 November 2018, ASTAC filed reports with the Public Prosecutor’s Office in connection with anti-union dismissals, blacklisting, harassment and acts of retaliation. As to the alleged blacklisting, the Committee recalls that all practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1121].
7. 248. In the light of the above, in connection with the complaints filed by ASTAC on 8 November 2017, and 28 March and 8 November 2018 concerning blacklisting and anti-union acts, the Committee requests the Government to conduct the respective inquiries, to provide a copy of the findings of the inquiries and, if it is confirmed that anti-union acts were committed, to take measures with sufficient dissuasive effect to penalize those responsible. Furthermore, the Committee urges the Government to meet with representatives of both complainant organizations to examine the allegations of anti-union discrimination in the banana sector outlined in the complaint.
8. 249. Fourthly, the Committee recalls that, in its previous examination, it requested the Government to conduct an inquiry into the alleged death threats against Mr Luis Ochoa, general secretary of the 7 February Association of Banana Plantation Workers, that reportedly led to the filing of a criminal complaint on the grounds of intimidation. While noting that the company states that the person who threatened Mr Luis Ochoa is not a representative of the company, the Committee notes with regret that the Government does not communicate any specific information in relation to Mr Luis Ochoa’s circumstances or the status of his criminal complaint, and recalls once again that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Compilation, op. cit., para. 84]. Consequently, the Committee urges the Government to communicate without delay specific information on the alleged death threats against the general secretary of the 7 February Association of Banana Plantation Workers, Mr Luis Ochoa, and to keep it informed in this respect.
9. 250. The Committee also notes the additional allegations communicated by the complainant in connection with purported death threats against the general secretary of ASTAC, Mr Jorge Washington Acosta Orellana, which were the subject of a complaint to the Public Prosecutor’s Office on 23 February 2018. In this respect, the Government states that the system containing the proceedings of the Council of the Judiciary only shows the existence of an application for protection that had been filed, and that if the union leader wishes to request protection measures, he may make an application to the relevant bodies, which will duly attend to it. The Committee observes that, on 23 February 2018, ASTAC filed a complaint with the Public Prosecutor’s Office concerning death threats against its general secretary (file number 090101818024320), and urges the Government to ensure that the complaint filed by the secretary general of ASTAC, Mr Jorge Washington Acosta Orellana, on 7 March 2018, is investigated, that the Government takes any action necessary to prevent any repetition of those acts in the future and to ensure his safety, and that it keeps the Committee informed in this respect.
10. 251. Lastly, as to the alleged anti-union effects of the three ministerial agreements issued by the Ministry of Labour (MDT-2017-0029, MDT-2018-0096 and MDT 2018-0074), the Committee notes that ASTAC considers that: (i) their issuance constitutes a serious deterioration in freedom of association, the right to collective bargaining, and the right to fair remuneration and a minimum wage; (ii) they individualize labour relations and ignore the role of trade union organizations; (iii) by endorsing the signature of temporary contracts for permanent activities and establishing that the employer may unilaterally terminate the employment contract, the Government is exposing workers to job instability; and (iv) temporary contracts in the banana sector may potentially be used for anti-union purposes. In turn, the Government denies that the agreements contain any restrictions on freedom of association or collective bargaining, which are protected under the Constitution, given that in its view, the primary objective is to adapt the legislation in line with the realities and needs of the banana sector and to regulate labour relations in the sector. Furthermore, the Government states that the agreements have allowed employers the possibility to maintain a discontinuous stability for workers, as employers may call on their workers in each cycle or phase of productivity, and that ASTAC’s application for constitutional review was denied by the Constitutional Court. While recalling that it is not within the mandate of the Committee to assess the legislative and regulatory action of the Government to establish minimum employment and contractual conditions in a particular sector [see Compilation, op. cit., para. 34], the Committee recalls that, in certain circumstances, the renewal of fixed-term contracts for several years may affect the exercise of trade union rights [see Compilation, op. cit., para. 1094]. In the absence of evidence to assess the impact of the issuance of the ministerial agreements on the exercise of freedom of association and the right to bargain collectively in the banana sector, the Committee invites the Government to examine, together with the organizations of employers and workers concerned, the impact of the reform on the exercise of freedom of association. The Committee requests the Government to keep it informed in this respect.