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

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

The Committee would be grateful for further information on the following points.

Part II, Articles 7 and 8, of the Convention. The Committee noted that the Labour Code, as well as other legislative texts, prohibit any engagement or recruitment activity which is not duly authorized by the competent official. It hoped, however, that provision will be expressly made to require that a recruitment licence be obtained by the agent concerned, in accordance with these Articles of the Convention. Please indicate what progress has been made in this respect.

Article 11. Given that section 7(II) of the Migration Act refers to cases of international migration, the Committee asked the Government to indicate the provisions, legislative or practical, which apply in the case of internal migration, and which - in all cases - provide for medical supervision during the journey.

Please communicate the text of the Migration Act cited above.

Articles 12 and 15. While noting the general provisions contained in section 41 of the Labour Code and the workers' safety and health regulations, the Committee hoped that the Government will take additional legislative and practical measures to ensure the full application of the provision of the Convention. Please indicate all progress made in this respect.

Part V, Article 36. See the direct request of 1991 concerning Convention No. 101.

Part VII, Article 47, paragraphs 3, 4 and 5, Article 48, paragraph 1, and Article 49. See the comments of 1982 concerning Convention No. 103.

Article 47, paragraph 8. The Committee noted the information referred to by the Government relating to Convention No. 103. The Committee observed that this information does not appear to contain any indication concerning the application of this paragraph of the Convention. The Committee recalled that, according to this paragraph - which does not appear in Convention No. 103 - no pregnant woman shall be required to undertake any type of work harmful to her in the period prior to her maternity leave. It requests the Government to indicate what measures have been taken or envisaged to ensure the application of this paragraph of the Convention.

Parts IX and X. See the observation made under Convention No. 87, as follows:

The Committee notes the discussions that took place at the Conference Committee in 1992 and the Government's report. It also notes the conclusions and recommendations of the Committee on Freedom of Association concerning Case No. 1617 (284th Report, paras. 1004 to 1010).

In its previous comments the Committee noted that the new Act No. 133, amending the Labour Code (published on 21 November 1991 in the Official Gazette) introduces the following provisions which may raise problems in the application of the Convention:

- the increase from 15 to 30 of the minimum number of workers required for the establishment of trade union associations, including works councils (sections 53 and 55);

- the decision by the Ministry of Labour, when there is disagreement between the parties, on the minimum services to be provided in the event of a strike in the services considered as essential, even when the State is party to the dispute (new section 503).

With regard to the first point, the Government states that Article 8, paragraph 1, of the Convention stipulates that in exercising the right to organize workers must respect the law of the land, and that the Convention allows each member State to determine the minimum number of workers in accordance with its own circumstances. The Government considers that in view of the prevailing circumstances in the Ecuadorian economy and productive and social sectors, the minimum number of workers required to form trade unions had to be amended, because it was established in 1938 when industrial and labour development were at their very beginnings.

The Government also states that the dynamics of relation in the productive sector and labour law made it essential and urgent to adjust labour standards on the requisite minimum number of workers, as Ecuador is engaged in a process of subregional economic, customs and industrial integration.

With regard to the Government's reference to Article 8, paragraph 1, of the Convention, the Committee points out that account should also be taken of Article 8, paragraph 2, which states: "The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention".

Although the minimum number of 30 workers would be acceptable in the case sectoral trade unions, as it said in its previous comments, the Committee considers that the minimum number should be reduced in the case of works councils so as not to hinder the establishment of such bodies, particularly when it is taken into account that the country has a very large proportion of small enterprises and that the trade union structure is based on enterprise unions.

As to the Ministry of Labour's responsibility for the decision on minimum services in the event of a strike, when there is disagreement between the parties, the Committee notes that, according to the information contained in the Government's report, Ecuadorian legislation considers that it is a fundamental obligation of the Government to ensure that essential minimum services are provided in the event of strikes in institutions that provide services in the social or public interest.

The Committee also notes that in 1991 the effects of a serious cholera epidemic in Ecuador made the provision of hospital and health services imperative and that there were none the less both regional and national strikes among health workers which completely paralysed medical care, which resulted in loss of life and created a serious risk and a state of emergency for the people deprived of this essential service.

The Committee agrees with the Government's view that preserving the right to life and health of citizens is a fundamental obligation in any society and particularly in societies which are on the brink of poverty, and it has always acknowledged that strikes may be restricted or even prohibited in essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population, such as hospital services.

However, the Committee considers that it would be preferable for the minimum services in public services which are not considered as essential in the strict sense of the term to be determined, where there is disagreement between the parties, by an independent body. The Committee asks the Government to provide information on the application in practice of this provision.

Furthermore, the Committee again notes with regret that the new legislation does not amend the following provisions which are incompatible with the requirements of the Convention, as the Committee has been pointing out for many years:

- the prohibition placed on public servants from setting up trade unions (section 10(g) of the Civil Service and Administrative Careers Act of 8 December 1971);

- the penalty of imprisonment laid down by Decree No. 105 of 7 June 1967 for the instigators of collective work stoppages and for those who participate in them;

- the requirement that members of the executive committees of works councils be Ecuadorian (section 455 of the Labour Code);

- the administrative dissolution of a works council when its membership drops below 25 per cent of the total number of workers (section 461);

- the prohibition placed on unions from taking part in religious or political activities (section 443(11)).

The Committee notes from the information supplied by the Government that, in accordance with the commitment made at the Conference Committee in June 1992, the Ministry of Labour requested the President of the National Congress in Communication No. 92081 of 21 July 1992 to initiate urgently the procedure for the adoption of the draft amendments to the Labour Code which were prepared by an ILO mission in December 1989, in order to eliminate the discrepancies between certain international labour Conventions ratified by the country. It also notes the reply from the Secretary-General of the National Congress to the effect that the procedure for the adoption of the draft amendments to the Labour Code requested by the Ministry would be initiated. The Committee asks the Government to keep it informed of progress in the adoption of these drafts by Parliament and to provide copies of these provisions once they have been adopted.

The Committee again urges the Government to take the necessary measures to bring law and practice into complete conformity with the Convention at an early date and asks it to provide detailed information in this respect in its next report.

The Committee is also addressing a direct request to the Government.

Part XI. The Committee asks the Government to send, with its next report, copies of periodic labour inspection reports concerning plantations.