Rapport intérimaire - Rapport No. 116, 1970

1. 369. The complaint of the Association of Aeronautical Technicians of Ecuador is contained in a communication dated 14 June 1969 addressed to the President of the International Labour Conference. The text of this communication was transmitted to the Government, which forwarded its observations on 16 October 1969.
2. 370. Ecuador has ratified both the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 371. The complaint, in telegraphic form, protests against the imprisonment of Dr. Guillermo Guerrero Villagómez, legal adviser to the complaining organisation. The ILO is requested to intervene to persuade the Government to cease the persecution and imprisonment suffered by members of that organisation merely because they have submitted requests for better economic conditions.
2. 372. The Government's reply consists mainly in information supplied by the Director-General of Civil Aviation. According to this official a group of employees in the Sub-Directorate for Flight Protection submitted a series of petitions to the authorities responsible for labour questions through the intermediary of the Association of Aeronautical Technicians of Ecuador. The Director-General goes on to state that, even though the Association has no connection whatsoever with the Directorate of Civil Aviation, the latter, with the aim of resolving any possible difficulties, called meetings of the staff of the Sub-Directorate in question, in Quito and in Guayaquil, " for the purpose of giving an account both of the action which it had taken on behalf of its employees and of the obligations of the latter towards the Directorate ". It was not possible to hold these meetings owing to the fact that the staff invited to attend them were prevented from doing so by three employees of the Sub-Directorate for the Coastal Region and four employees working at Quito Airport, who were punished for their action in accordance with the relevant regulations. In the light of this situation, some of the staff of the Sub-Directorate for Flight Protection left their work, in opposition to the principles laid down in the Constitution, whereupon the authorities took certain measures, as provided for by law, in order to avoid, in this way, the paralysis of commercial air-transport activities.
3. 373. The Director-General goes on to explain that civilian employees of the General Directorate of Civil Aviation are subject to military penal jurisdiction and, in respect of discipline, to the regulations of the Directorate. He refers in this connection to article 250 of the Political Constitution of the State, which lays down that " all serving members of the armed forces and the civil police shall be subject to military or police orders and jurisdiction respectively. The same shall apply to those civilian employees who serve in these bodies. " In addition, section 3, subsection 2, of the Act concerning the personnel of the armed forces lays down that " all civilian employees and specialists under contract serving in the armed forces shall be subject to military penal jurisdiction and, in respect of discipline, to the appropriate regulations ".
4. 374. The Director-General of Civil Aviation declares that the Directorate has no knowledge of the order for the arrest of the legal adviser and other officials of the Association of Aeronautical Technicians of Ecuador, since it is not within its competence to order the detention of any person. He concludes with the assurance that the Directorate has always been prepared to enter cordially into conversations with its staff and satisfy those of their demands which it considers to be justified, but that it is also determined to maintain order and discipline and will not allow commercial air services to be disrupted, with serious consequences for both users and carriers.

B. B. The Committee's conclusions

1. 375. The Committee notes from the information supplied by the Government that the persons involved in this case are civilian employees working for the commercial air transport service, who fall within the jurisdiction of the armed forces. The submission of a series of claims by these employees through the intermediary of an industrial association did not lead to the initiation of talks with that organisation but to the calling together of the workers concerned by the General Directorate of Civil Aviation with a view to giving them an account " both of the action which it had taken on behalf of its employees and of the obligations of the latter towards the Directorate ". This sparked off a chain of events which led to the presentation of the complaint now before the Committee.
2. 376. In the light of the comments made by the Government the Committee is of the opinion that in the present case it is necessary first and foremost to determine the extent to which the workers involved are covered by the guarantees set forth in the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Both Conventions allow national legislation to exclude the armed forces from the guarantees provided for therein. In the Committee's view the workers concerned cannot be deemed, by virtue of the functions they perform, to belong to the armed forces with a view to excluding them from coverage by the Conventions, but should be classified as employees of the State or public servants for the purposes of these instruments.
3. 377. The position of such officials under the Conventions in question is as follows. As concerns Convention No. 87, which speaks of " workers ... without distinction whatsoever " (Article 2), all public servants are covered by the guarantees for which it provides in respect of the right to organise. As for Convention No. 98, Article 6 allows for the exclusion of " public servants engaged in the administration of the State ". In this respect the Committee of Experts on the Application of Conventions and Recommendations has pointed out that while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of public servants who do not act as agents of the public authority is contrary to the meaning of the Convention. The distinction to be drawn, therefore, according to the Committee of Experts, would appear to be, basically, between civil servants employed in various capacities in government ministries or comparable bodies-that is public servants who, by their functions, are directly engaged in the administration of the State as well as lower-ranking officials who act as supporting elements in these activities-on the one hand, and other persons employed by the Government, by public undertakings or by autonomous public institutions, on the other hand. The Committee on Freedom of Association observes that the civil aviation technicians involved in the present case obviously do not fall within the category of employees of the State whose functions justify their exclusion from the scope of Convention No. 98.
4. 378. It follows that, firstly, the personnel in question should have the right-guaranteed by Convention No. 87-to establish and to join organisations of their own choosing for the defence of their interests. Secondly, it is necessary to apply to such workers the provisions of Article 4 of Convention No. 98, which states that " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". In this respect the Committee has already stressed in previous cases the importance it attaches to the principle that employers, including government authorities in their capacity as employers, should recognise for the purposes of collective bargaining the organisations representative of the workers.