Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Equateur (Ratification: 1959)

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The Committee notes the detailed joint observations of the Federation of Petroleum Workers of Ecuador (FETRAPEC), Public Services International (PSI) in Ecuador, and the United Workers’ Front (FUT), received on 31 August 2023, which address thoroughly the matters examined by the Committee in the present comment and allege acts of anti-union persecution. The Committee requests the Government to provide its comments in this respect, and also with respect to the observations sent in 2022 by the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), the Ecuadorian Confederation of Free Trade Unions (CEOSL), FETRAPEC, the National Federation of Education Workers (UNE), and PSI in Ecuador.

Technical assistance. Direct contacts mission requested by the Committee on the Application of Standards (Conference Committee) in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). In its last comment, the Committee noted that the Conference Committee, when examining the application of Convention No. 87 by Ecuador in June 2022, addressed matters that had a direct impact on workers’ capacity to negotiate collectively their terms and conditions of work, and therefore on the application of the present Convention. The Conference Committee invited the Government to avail itself of technical assistance from the Office and asked it to accept a direct contacts mission. The Committee notes the Government’s indication, in its report on Convention No. 87, that in view of the current political situation in the country and the change of Government, the Ministry of Labour will resume talks and liaison with the Office in 2024 with a view to a possible direct contacts mission. The Committee firmly hopes that the direct contacts mission requested by the Conference Committee with regard to Convention No. 87 will take place as soon as possible and also hopes that the Government will avail itself of technical assistance from the Office, trusting that such assistance will contribute to progress in the adoption of specific, effective and time-bound measures, in consultation with the social partners, in order to bring the legislation into conformity with the Convention with regard to the points set out below.

Application of the Convention in the private sector

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. For more than a decade, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination at the time of access to employment. The Committee notes the Government’s indication that the new executive and legislative authorities will analyse the necessary reforms once they take up office. The Committee recalls that Article 1 of the Convention prohibits anti-union discrimination at the time of the recruitment of individual workers, so that access to employment is not made subject to the condition that workers shall not join a union or shall relinquish union membership. In light of the above, the Committee once again emphasizes the need for provisions expressly prohibiting acts of anti-union discrimination at the time of access to employment to be included in the legislation and requests the Government to provide information on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that, under section 221 of the Labour Code, collective labour agreements must be concluded with the enterprise committee (one of the forms that, under the Labour Code, trade unions can take within an enterprise) or, if one does not exist, with the organization with the largest number of worker members, on condition that it represents over 50 per cent of the workers in the enterprise. The Committee previously urged the Government to take the necessary steps to amend section 221 so that, if there is no organization that represents over 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee notes with regret that the Government merely reiterates once again that this requirement for the negotiation of a collective agreement is closely related to principles such as democracy, participation and transparency, since the benefits obtained in the collective agreement apply to all workers in the enterprise or institution. The Committee is bound to emphasize once again that, even though the requirement of representativeness for signing collective agreements is fully compatible with the Convention, the level of representativeness set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining, as referred to in Article 4 of the Convention. In this regard, the Committee recalls that in previous comments it noted the low rate of coverage of collective bargaining in the private sector. The Committee notes the Government’s indication that between May 2021 and May 2023, a total of 57 collective agreements were concluded in the private sector. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT, apart from highlighting the low number of collective agreements in the private sector, indicate that the Government does not specify whether the figures it provides refer to new collective agreements or revised versions thereof and that it also does not provide exact data on the number of persons covered by any collective agreements concluded or in which sectors they are concentrated. Once again emphasizing the link between the low coverage of collective agreements in the country and the restrictive requirements set out in law for participation in collective bargaining, the Committee once again urges the Government, after consulting the social partners, to take the necessary steps to amend section 221 of the Labour Code as indicated above. The Committee also requests the Government to continue providing information on the number of collective agreements concluded and in force in the country, with an indication of the sectors covered (including the agricultural and banana sector), the number of workers covered and whether they are new or revised collective agreements.

Collective bargaining in sectors composed mainly of small enterprises. The Committee recalls that, in its comments on the application of Convention No. 87, it has been calling for many years for the amendment of the following aspects of the legislation, which significantly restrict the capacity of workers to organize in unions: (i) the requirement of a minimum of 30 workers to establish unions and enterprise committees; and (ii) the impossibility of establishing primary-level unions composed of workers from different enterprises. Having noted with concern that these restrictions on the right to organize, combined with the absence of a legal framework for collective bargaining at the sectoral level, as denounced by the trade unions, appear to exclude any possibility for workers in small enterprises to exercise their right to collective bargaining, the Committee asked the Government to provide information on the measures taken to promote collective bargaining in sectors of production composed mainly of small enterprises. The Committee notes the Government’s indication that a decision on an extraordinary protection order applied for in the Constitutional Court is still pending, in relation to a ruling ordering the Ministry of Labour to register ASTAC as a branch union, despite it being composed of workers from various enterprises, and to adopt regulations on the registration of branch unions. The Government also indicates that, as indicated by the Basic Act to promote the Violet Economy, published on 20 January 2023, its priority focuses on promoting, through collective bargaining, the establishment of positive action measures for the effective application of the principle of equality of treatment and non-discrimination in conditions of work for women and men. While noting this information, the Committee notes with regret that the Government does not provide information on the measures requested by the Committee. In light of the above, the Committee once again requests the Government to provide information on the measures taken to promote collective bargaining in sectors of production composed mainly of small enterprises.

Application of the Convention in the public sector

Articles 1, 2 and 6 of the Convention. Protection of workers in the public sector who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee requested the Government to take the necessary steps to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference. The Committee notes the Government’s assertion that the legislation grants protection to public servants against acts of discrimination through the fact of their belonging to the committees of public servants and reiterates once again that protection against acts of discrimination and the right to establish unions is provided for in both the Political Constitution and the Basic Public Service Act (LOSEP), which prohibits any act of discrimination against public servants. The Committee notes with regret that the Government merely reiterates what it already indicated on previous occasions, and in the same way as the Committee on Freedom of Association, when it examined Case No. 3347, the Committee once again emphasizes the importance of the legislation providing the same type of protection against possible acts of anti-union discrimination and interference for all leaders of all public servants’ organizations alike. In light of the above, the Committee is bound to urge the Government once again to take the necessary measures to ensure that the legislation applicable to the public sector includes provisions that explicitly protect the leaders of all organizations of public servants, and not only the leaders of the committees of public servants, against acts of anti-union discrimination and interference, as well as provisions establishing penalties that act as a deterrent in the event of such acts. The Committee requests the Government to provide information on any measures taken or envisaged in this respect. The Committee also previously noted a ruling issued in 2020 declaring unconstitutional the compulsory redundancy purchase mechanism under which the public administration, in exchange for the payment of compensation, could unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination. The Committee observed that although the ruling removed the prohibition for persons who have been dismissed to return to work in the public sector, PSI in Ecuador alleged that the Government had not complied with this aspect of the ruling. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that: (i) although by an agreement of March 2023 that the Government had undertaken to examine a possible return to office in the April-May period of 15 dismissed former public officials and a road map for the recall of another 192 persons by August 2023, so far five individuals have been recalled but under temporary arrangements instead of within the career public servant system; and (ii) through a series of judicial actions, a number of persons have been reinstated in the public posts from which they were dismissed and in some cases have even been the beneficiaries of rulings with financial compensation for the injury suffered. The Committee duly notes this information provided by the trade unions and once again requests the Government to send information on any action taken to comply with this ruling.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. The Committee previously observed that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 did not recognize the right to collective bargaining of public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee also noted that the 2015 amendments to the Constitution excluding the entire public sector from the scope of collective bargaining had been annulled by the Constitutional Court in 2018 and that Ministerial Order No. 373 had been issued in 2019 to give effect to the ruling. The Committee notes the Government’s indication that further to the amendments adopted by the National Assembly in 2015 being declared unconstitutional, the text that existed prior to their promulgation remained valid, and so the Constitution does not enshrine public servants’ right to organize for the defence of their interests and improvements in the provision of services. The Committee notes the Government’s indication that from May 2021 to May 2023, a total of 139 collective agreements were concluded in the public sector. The Committee notes that FETRAPEC, PSI in Ecuador and the FUT indicate that the small number of collective agreements in the public sector is due, inter alia, to the fact that only the special committees composed of workers governed by the Labour Code can conclude collective agreements, and budgetary approval is required. Furthermore, the Committee notes that, according to FETRAPEC, PSI in Ecuador and the FUT, the Basic Employment Bill, which, they indicated, would contain a provision on the elimination of collective bargaining in the public sector, was discarded. The Committee is bound to note with concern that the legislation still does not recognize the right to collective bargaining of public servants, despite the fact that many of them (public sector teachers, employees in the public health system, employees in public enterprises, municipal services and decentralized bodies, etc.) are not engaged in the administration of the State and should therefore benefit from the guarantees provided by the Convention. The Committee notes with regret that, despite its requests, the Government has not provided information on specific initiatives for the re-establishment of the rights referred to above. Recalling once again that there are mechanisms that permit the harmonious coexistence of the public sector’s mission to serve the public interest and the responsible exercise of collective bargaining, the Committee once again urges the Government, in consultation with the representative organizations of workers, to take the necessary steps to establish adequate collective bargaining machinery for all the categories of public sector employees covered by the Convention. The Committee requests the Government to report any developments in this respect and to also provide information on the motions submitted to have the Humanitarian Act of June 2020, declared unconstitutional, which, according to PSI in Ecuador, imposed restrictions on collective bargaining by public sector workers governed by the Labour Code.

[The Government is asked to reply in full to the present comments in 2024.]