Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

The Committee notes the Government’s reply to the comments of 28 August 2007 by the International Trade Union Confederation (ITUC) concerning the removal by the police of workers taking part in a strike in the banana sector on 11 February 2006. According to the Government, the police removed the workers in order to prevent damage to the facilities and avoid a confrontation between the workers and the owners of the plantation. Furthermore, the Committee notes with regret that the Government has not sent its observations on the other comments of the ITUC concerning repression by the police and the army of a demonstration called by the trade union federations in 2006, causing serious injuries and arrests, or on the alleged threats and acts of intimidation against leaders of the CTE and CEDOCUT. The Committee reminds the Government in this connection that the arrest or detention, even for short periods, of trade union leaders and members engaged in legitimate trade union activities constitutes a grave violation of the principle of freedom of association, and emphasizes that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately as the most appropriate means of fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Lastly, the Committee notes the comments of 24 August 2009 by the National Federation of Workers of the Enterprise “Petróleos del Ecuador” (FETRAPEC) and those of 26 August 2009 by the ITUC referring to legislative issues highlighted by the Committee, and in particular certain provisions of the new Constitution of Ecuador (especially article 326, paragraph 16, which provides that state institutions and private law entities in which public resources have a majority share that carry on representational, management, administrative or professional activities, shall be subject to the laws regulating the public administration and that all others shall be covered by the Labour Code). The Committee requests the Government to send its observations on this matter.

The Committee also notes the comments of 30 August 2009 by the International Organisation of Employers (IOE) in which the latter asserts that the new Constitution of Ecuador includes certain amendments that adversely affect relations between workers and employers and that although representatives from various sectors played an active part in the preparation of the new constitutional texts, there was no real or effective participation or any balanced input to the framing of constitutional provisions from the main partners in the labour relationship, and hence no objective analysis and diagnosis of the issues to be treated in the Constitution. The IOE objects in particular to article 326, paragraph 8, which establishes that the State shall promote the democratic, participatory and transparent operation of workers’ and employers’ organizations with alternation of leadership, on the grounds that this provision constitutes a form of state intervention in the internal activities of workers’ and employers’ organizations, in breach of the Convention.

New Constitution of Ecuador

The Committee notes that on 28 September 2008 a new Constitution was adopted, which entered into force on 20 October 2008. The Committee observes that some of its provisions raise problems of compatibility with the Convention:

–           article 326, paragraph 8, which provides that “the State shall encourage the creation of organizations of men and women workers and of men and women employers, in accordance with the law; and shall promote democracy, participation and transparency in their running with alternation in their leadership”. In this connection, the Committee emphasizes that according to Article 3 of the Convention, decisions as to alternation in executive offices rest solely with the organizations of workers and employers and their members. In these circumstances, the Committee asks the Government to take the necessary steps to repeal or amend this provision so as to allow the re-election of officers of workers’ and employers’ organizations.

–           article 326, paragraph 12, which establishes that collective labour disputes shall, in all instances, be referred to courts of conciliation and arbitration. The Committee reminds the Government that compulsory arbitration to end a collective labour dispute or a strike is acceptable only where requested by both parties to the dispute and where the strike may be restricted or prohibited, namely in disputes in the public service involving public servants who exercise authority in the name of the State or in essential services in the strict sense, i.e. services the interruption of which would endanger the life or personal safety of the whole or part of the population. The Committee requests the Government to take all necessary steps to repeal or amend this provision to ensure that compulsory arbitration is possible only in the instances cited above.

–           article 326, paragraph 15, which prohibits suspension of public services in education, social security, production and transformation of hydrocarbons, transport and distribution of fuel, and provides that the law will provide limits to ensure the said services’ operation. In this respect, the Committee recalls that the right to strike can only be restrained or prohibited: (1) for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of term (i.e. services the interruption of which could endanger the life or personal safety of the whole or part of the population). The Committee also recalls that in order to avoid damages which are irreversible or out of all proportion to the parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. The Committee requests the Government to take appropriate measures in order to modify this provision so as to ensure that the right to strike can be exercised in the abovementioned services, with the possibility to provide a system of minimum services which is to be determined with the participation of workers’ and employers’ organizations.

Pending legislative issues

The Committee points out that for many years it has been asking the Government to take steps to repeal or amend:

–           sections 450, 459 and 466 of the Labour Code establishing a minimum requirement of 30 workers for the creation of associations, works committees or assemblies to organize works committees;

–           section 26(g) of the Codification of the Framework Act on the Civil Service and Administrative Careers and the Unification and Standardization of Public Sector Remuneration which prohibits work stoppages on any grounds in public services which may not be deemed essential in the strict sense (education, social security, hydrocarbon production, fuel processing, transport and distribution, and public transport) and provides for dismissal for failure to observe the prohibition;

–           section 522, second paragraph, of the Labour Code respecting the determination of minimum services by the Ministry of Labour in case of disagreement between the parties in the event of a strike;

–           section 505 of the Labour Code which implicitly denies federations and confederations the right to strike;

–           Decree No. 105 of 7 June 1967 establishing the imposition of prison sentences for participation in unlawful work stoppages and strikes; and

–           section 466(4) of the Labour Code requiring Ecuadorian nationality for service as a trade union officer.

The Committee notes that in its report the Government states that a detailed study will be conducted in the National Assembly for the drafting of a bill to amend the Labour Code and that the Committee’s observations will be submitted to the National Assembly. The Committee hopes that it will be able to note progress in the legislation in the near future and asks the Government in its next report to provide information on all developments in this regard. It reminds the Government that it may seek technical assistance from the Office in the context of its reform of the Labour Code.

The Committee has received information about two proposals for acts being debated in the National Assembly: the Basic Public Service Act and the Basic Act on Public Enterprises. The Committee hopes that the new texts will establish in full the rights laid down in the Convention: the right to organize of public officials and employees and the right to strike of public servants other than those exercising authority in the name of the State.

Furthermore, the Committee once again asks the Government to provide information on the number of associations that have been set up for the promotion and defence of the interests of public servants, the sectors covered and the approximate number of members.

The Committee is raising other points in a request addressed directly to the Government.