Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes the Government’s report.

The Committee recalls that in its previous observations it raised the following points.

1. Right of workers and employers, without distinction whatsoever, to establish organizations of their own choosing (Article 2).

(a)  The Committee has referred to the need to amend section 59(f) of the Civil Service and Administrative Careers Act to ensure that civil servants, in addition to being able to "associate and appoint their leaders," are able to establish organizations to promote and defend their occupational and economic interests. Noting that the Government continues to refer to article 35(9) of the Political Constitution, the Committee recalls that, when it comes to the question of the right of public servants, this article refers to the laws governing the public administration. The Committee therefore requests the Government to provide information in its next report on any legislative progress made in amending the Civil Service and Administrative Careers Act so that public servants can establish organizations within the meaning of Article 10 of the Convention.

(b)  The Committee also referred to the need for civilian workers in bodies associated with or dependent on the armed forces, and workers in the maritime transport sector, to enjoy the right to join trade unions. In this respect, the Committee regrets that the Government does not refer to this matter in its report. The Committee considers that, in view of the fact that Article 9 of the Convention only envisages exceptions for the police and the armed forces, workers should be considered as civilians in case of doubt (see General Survey on freedom of association and collective bargaining, 1994, paragraph 55). The Committee therefore asks the Government to take measures to ensure that civilian employees in the armed forces and the maritime sector are guaranteed the right to organize in conformity with Article 20 of the Convention and to provide information in this respect in its next report.

The Committee also addressed the issue of the refusal to register the Union of Ecuadorian Shipping Transport Workers (TRANSNAVE), and notes in this respect the Government’s indication in its report that it would not oppose the registration of this trade union. In these conditions, the Committee requests that the Government take the necessary measures for the registration of the trade union as soon as possible. It asks the Government to provide information in this respect in its next report.

(c)  The Committee also recalls that for a number of years it has been referring to the need to reduce the minimum number of workers (30) required to be able to establish associations, works committees or assemblies to organize works committees (sections 450, 466 and 459 of the Labour Code). It reiterates that, although this minimum number of workers would be permissible for industrial trade unions, it could have the effect of hindering the establishment of enterprise organizations, particularly in small enterprises, which appear to be very numerous in the country. The Committee expresses the firm hope that in the very near future the Government will adopt the relevant measures to reduce the minimum number of workers required to form works committees.

(d)  With regard to the administrative refusal to register a trade union, professional association (section 452 of the Labour Code) or works committee (section 466(2)), the Committee regrets to note that the Government has not made any comment and requests it to ensure that, in the event of refusal of registration, the trade union, association or works committee whose application was denied is able to appeal to the competent judicial authorities for the examination of the question on the merits and the reasons for which the measure was taken.

2. Right of workers’ organizations to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes (Article 3).

(a)  The Committee recalls that in its previous comments it referred to the need to amend section 60(g) of the Civil Service and Administrative Careers Act, which prohibits civil servants from calling strikes. It also requested the Government to amend article 45(10) of the Political Constitution, which prohibits the interruption of public services for any reason. The Committee noted in this respect that this prohibition should be confined to public servants acting in their capacity as agents of the public authority or to essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population.

The Committee notes that, according to the Government’s latest report, since public servants exercising authority are not those who provide public services which may be essential for the life and integrity of the population, it would not be logical to limit the prohibition of strikes to these persons. Furthermore, according to the Government, the education and transport sectors must be considered as basic essential services. The Committee nevertheless considers that the abovementioned provisions incorporate an overly broad view of those public servants who may be excluded from the exercise of the right to strike and of "essential services" in which strikes may be prohibited. The Committee recalls in particular that the education and transport sectors do not constitute essential services in the strict sense of the term. It recalls however that the authorities may establish a system of minimum service in services which are not essential, such as public utilities, instead of prohibiting all strike action. In the light of these considerations, the Committee hopes that the above provisions will be brought into conformity with Article 3 of the Convention in the near future.

(b)  In its previous comments, the Committee also referred to the need to amend section 522(2) of the Labour Code concerning the determination of minimum services in the event of a strike by the Minister in the case of a disagreement between the parties. Noting that the Government does not refer to this matter, the Committee once again requests it to take the necessary measures to ensure that workers’ organizations are able to participate, if they so wish, in defining this service, along with employers and the public authorities (see 1994 General Survey, paragraph 161). The Committee expresses the firm hope that the Government will make this amendment to the legislation in the near future and will provide information in this respect in its next report.

(c)  The Committee notes the Government’s indication that appropriate procedures have been set in motion to repeal Decree No. 105 of 7 June 1967, with regard to unlawful work stoppages and strikes, and the prison sentences which can be imposed on those instigating or taking part in such acts. The Committee hopes that the Government will complete this process in the near future and requests that the Government provide information on this in its next report.

(d)  With regard to the implicit denial of the right to strike for federations and confederations (section 505 of the Labour Code), the Committee notes that the Government makes no comment on this matter. It recalls that workers’ organizations have the right to organize their activities and to formulate their programmes (Article 3) and that, under Article 6 of the Convention, provisions of this Article apply to federations and confederations of workers’ and employers’ organizations. It therefore requests the Government to take measures to amend its legislation so as to ensure that federations and confederations may exercise industrial action without penalty.

(e)  With regard to the requirement that a person must have Ecuadorian nationality in order to serve as a trade union official (section 466(4) of the Labour Code), the Committee notes the Government’s indication that it is possible to recognize a person who is not of Ecuadorian nationality as a trade union officer since, in any case, the Convention and the Political Constitution (article 13, under which "foreign nationals shall enjoy the same rights as Ecuadorians, with the limitations established in the Constitution and in the law") prevail over the law, because they have supremacy and higher legal authority than other legislative provisions, such as the Labour Code. Nevertheless, the Committee understands that section 466(4) of the Labour Code sets forth a specific limitation on the right of persons who are not nationals of Ecuador to hold trade union office (the members of the executive board have to be nationals of Ecuador), whereas Article 3 of the Convention provides generally that workers’ organizations shall have the right to elect their representatives in full freedom. Recalling that national legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence, in the host country (see 1994 General Survey, paragraph 118), the Committee asks the Government to take measures to amend section 466(4) of the Labour Code.

3. Workers’ organizations shall not be liable to be dissolved or suspended by administrative authority (Article 4).

(a)  In its previous comments, the Committee referred to the need to ensure the right to appeal to the judicial authorities against the dissolution by the administrative authority of a works committee, which may arise under section 472 of the Labour Code. The Committee notes that under the terms of section 447 of the Labour Code, "workers’ organizations shall not be suspended or dissolved except by judicial process before the labour courts". The Committee recalls in this respect that the right of appeal must be allowed to an independent and impartial judicial body which is competent to examine the case on its merits. Moreover, the administrative decision should not take effect until a final decision is handed down (see 1994 General Survey paragraph 185). The Committee therefore requests that the Government indicate in its next report whether labour court judges are competent to examine the merits of the case and whether an administrative decision does not take effect until a final decision is handed down.

Finally, noting that despite the technical assistance provided by the Office, the Government has still not brought its law and practice into conformity with the Convention on the points referred to above, the Committee encourages the Government to make progress in adapting its legislation to the Convention on all the matters referred to above. It asks the Government to provide it with information in this respect in its next report. It once again recalls that ILO technical assistance is available to the Government in this regard.

The Committee is also addressing a request on another matter directly to the Government.