Demande directe (CEACR) - adoptée 1993, publiée 80ème session CIT (1993)

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.