Rapport définitif - Rapport No. 308, Novembre 1997

1. 258. The complaints in this case are contained in a communication from the Confederation of Workers of Ecuador (CTE), dated 15 January 1997, and in a communication from the Latin American Central of Workers (CLAT), dated 18 August 1997. The Government sent its observations in a communication dated 9 September 1997.
2. 259. Ecuador has ratified 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. The complainants' allegations

1. 260. In its communication dated 15 January 1997, the Confederation of Workers of Ecuador (CTE) states that the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL was established as set out in the second clause of the first non-numbered article contained in section 39 of Law No. 133 reforming the Labour Code. CONAUTEL has been representing the workers of EMETEL in negotiations and the signing of collective labour agreements. Likewise, its legal existence has been recognized and its authority to perform duties in other public organizations, by virtue of other laws, such as the special law on telecommunications, the law reforming the special law on telecommunications, and the law on the National Unemployment Fund of Workers of EMETEL. In order to comply with the provisions of the first clause of section 1, of Article 49 of the Political Constitution of Ecuador (which sets out that: "for all purposes of labour relations in bodies in the public sector, the labour sector shall be represented by one single organization"), CONAUTEL submitted its Statutes for approval by the Ministry of Labour and Human Resources: the said approval was implemented through Accord No. 210 and was registered in the General Directorate of Labour on 8 August 1996, thus constituting CONAUTEL as the only representative organization of workers in the public sector.
2. 261. The complainant alleges that, in violation of freedom of association and its free development, guaranteed in the Constitution and laws of Ecuador, the Ministry of Labour authorities issued the Resolution dated 26 September 1996 in which it is set out that "the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, in compliance with the principles established in section 449 of the Labour Code, proceeds with the election of its Board with the participation of all the workers of EMETEL, for which its provisional Board must immediately carry out the corresponding call to vote ...". Although the administrative authorities did not have the authority to get involved in the activities of the union organization CONAUTEL, the latter proceeded to call for elections, since the Ministerial Resolution allowed the call to elections to be made by the union organization itself, under the supervision of the General Directorate of Labour, throughout the whole process of electing the Board in accordance with the provisions of Articles 5 and 6 of their Statutes. All of this was communicated to the Ministry of Labour in communication No. 239-96 CONAUTEL, dated 3 October 1996. In reply to this communication (No. 239-96 CONAUTEL), the authorities of the Sub-secretariat of Labour, yet again violating freedom of association, stated: "Permit me to remind you that any election process must be made jointly with the Director-General of Labour, therefore what you have carried out digresses from the terms of the ministerial resolution of 26 September 1996, and for this reason lacks validity." Subsequently, the Director-General of Labour issued an illegal and arbitrary instrument for elections to the Board of CONAUTEL, without knowledge of this body, and obliged the organization to sign an agreement for elections to the Board of CONAUTEL, setting up an electoral tribunal illegally and with persons foreign to CONAUTEL, with electoral lists which gave votes to people outside the organization.
3. 262. The complainant adds that CONAUTEL contested the legality of this whole process, including the election of the Board itself, as being null and void; this challenge was made persistently but the call did not gain the attention of the Ministry of Labour authorities, despite having irrefutably demonstrated the legal and constitutional norms which had been violated.
4. 263. In its communication dated 18 August 1997, the Latin American Central of Workers (CLAT) alleges that in its Resolution No. 016-2-97, the Constitutional Court of the Republic of Ecuador decided to suspend the results of the elections carried out by the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, organization affiliated to CEDOC/CLAT, and to allow an appeal presented by Ms. Greta Hoyos, the person who headed another list of workers during the union elections but did not manage to win the majority of votes. (The CTE supports the Board presided over by Ms. Hoyos.) The decision of the Constitutional Court of the Republic of Ecuador was preceded by strong support from the State Attorney General's office. In the union elections, Mr. Agapito Moreira, current President of CONAUTEL, came out as the winner, along with an Executive Committee made up of various workers from the enterprise EMETEL. None the less, the decision of the Constitutional Court disregards the results of these free and democratic elections.
5. 264. CLAT adds that in order to demonstrate a clear case of violation of freedom of association it is necessary to present the following considerations: (1) firstly, Mr. Agapito Moreira, current President of CONAUTEL, and the other members of the Executive Committee of this organization of workers took on their duties following free and democratic elections which were supervised by the Ministry of Labour and Human Resources. This electoral process included the participation of Ms. Greta Hoyos, who headed the losing list. These elections were carried out within the legal norms in force in the country and totally in accordance with the principles set out in ILO Convention No. 87; (2) Mr. Agapito Moreira and the Executive Committee of CONAUTEL took possession of their posts in a ceremony which included the participation of the Minister of Labour and Human Resources, of other national authorities and of the top leaders of the Ecuadorean Central Organization of Class Organizations (CEDOC/CLAT); (3) the enterprise itself and CONAUTEL gave their full recognition to the new Board of CONAUTEL; and (4) Ms. Greta Hoyos had recourse on several occasions to various types of political influence to try to establish non-recognition of the new Board of CONAUTEL and the legal powers themselves rejected her false claim. So, it is alarming to receive information which demonstrates that the Constitutional Court and the State Attorney-General are involved in issues which are the exclusive affair of the workers, such as the election of their own appropriate authorities, thus making themselves directly responsible for an act of open interference in the internal affairs of a trade union.
6. 265. The Latin American Central of Workers (CLAT) states that in resolution No. 016-2-97, the Constitutional Court openly adjudicates the duty of President and legal representative of CONAUTEL to Ms. Greta Hoyos, thereby negating the result of the free and democratic elections held by CONAUTEL, dated 11 December 1996. In fact the first point of the Resolutions of the Constitutional Court states the following: to accept the appeal presented by Ms. Greta Hoyos (President and legal representative of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL) to the President of the Constitutional Court. Finally, the complainant states that the national authorities interfered in the internal affairs of a union organization, disregarding the results of free and democratic elections carried out by the workers of the enterprise EMETEL and naming a person to represent the workers of the said enterprise.

B. The Government's reply

1. 266. In its communication dated 9 September 1997, the Government declares the following with regard to the complaint presented by the Confederation of Workers of Ecuador (CTE):
2. (1) both the Resolution of 26 September 1996, calling for the election of the Board of CONAUTEL, and the "instruction for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL" dated 29 October 1996, merited sanction in law, thus suspending their implementation by the Constitutional Court, the supreme body of constitutional control, in accordance with the precepts of the law on constitutional control, the principal aim of which is to ensure the efficacy of constitutional norms;
3. (2) the Constitutional Court, through Resolution No. 016-2-97, issued on 12 June 1997, and published in Official Register No. 93, dated 24 June 1997, accepted the appeal presented by Ms. Greta Hoyos Jaramillo and allowed the proposed appeal for habeas corpus, and as a consequence suspended the administrative acts mentioned in the previous paragraph;
4. (3) Resolution No. 016-2-97, issued by the Constitutional Court, by express order of the Constitution of the Republic of Ecuador, does not have retroactive effect and governs from the date of its publication in the Official Register, consequently the suspended administrative acts lost their effect and legal sway subsequent to that publication and could not be invoked and applied in the future, but this does not affect firm legal cases established under the protection of the said administrative act before it was revoked. (Article 26 of the law on constitutional control and Article 176 of the Political Constitution of the Republic of Ecuador);
5. (4) the Ministry of Labour and Human Resources of Ecuador, at that time was not able to attend to the requests made by the complainants because some contested legal decisions were still pending, and were about to be clarified on the basis of the Constitution; moreover, in deference to the norms contained in ILO Convention No. 87, this Ministry was forbidden from interfering in matters concerning unionization;
6. (5) the Ministry of Labour of the Republic of Ecuador, through Ministerial Accord No. 320, dated 14 August 1997, ordered the Director General of Labour to fulfil the requirements of Resolution No. 016-2-97 of the Constitutional Court, published in Official Register No. 93, dated 24 June 1997, an order which was completely fulfilled by the said authorities;
7. (6) on 19 August 1997, in consideration of the request presented by CONAUTEL, taking as a precedent the National Assembly of CONAUTEL, held on 14 August 1997, the Coastal Subdirectorate of Labour proceeded to register (by its authority enshrined in the Labour Code) the Board of CONAUTEL presided over by Ms. Greta Hoyos Jaramillo, entered in Register 09, file 155, No. 701.
8. 267. With regard to the complaint presented by Latin American Central of Workers (CLAT) the Government states that:
9. (1) on 11 December 1996, CONAUTEL, in view of Resolution No. 26, dated September 1996, issued by the Minister of Labour and of the "instruction for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL", dated 29 October 1996, elected their Board presided over by Mr. Agapito Moreira, who was entered in the registers of the Ministry of Labour and Human Resources of Ecuador, in the Department of Labour Organizations, on 8 January 1997 in Register 03, file 01, No. 003;
10. (2) the unchanging administrative acts of the Resolution of 26 September 1996, issued by the Minister of Labour and the "instruction for the elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL", dated 29 October 1996, were suspended by the Constitutional Court, through Resolution No. 016-2-97, issued on 12 June 1997, and published in Official Register No. 93, dated 24 June 1997;
11. (3) Resolution No. 016-2-97, issued by the Constitutional Court, by express order of the Constitution of the Republic of Ecuador, is not effective retroactively and governs for the future from the date of its publication in the Official Register, consequently the suspended administrative acts lost their effect and legal sway subsequent to this publication, not being able to be invoked and applied in the future, but this does not affect firm legal cases established under the protection of the said administrative acts before they were revoked (Article 26 of the law on constitutional control and Article 176 of the Political Constitution of the Republic of Ecuador);
12. (4) the Ministry of Labour of the Republic of Ecuador, through Ministerial Accord No. 320, dated 14 August 1997, ordered the Director-General of Labour to carry out the provisions set out in Resolution No. 016-2-97 of the Constitutional Court, published in Official Register No. 93, dated 24 June 1997, an order which has now been fulfilled by the authority in question;
13. (5) on 19 August 1997, in view of the request presented by CONAUTEL, and taking as a precedent the National Assembly of CONAUTEL, held on 14 August 1997, the Coastal Subdirectorate of Labour proceeded to register, by virtue of its authority enshrined in the Labour Code, the Board of CONAUTEL presided over by Ms. Greta Hoyos Jaramillo, and entered it in Register 09, file 155, No. 701;
14. (6) a claim challenging the registration of the Board presided over by Ms. Greta Hoyos, presented by Mr. Agapito Moreira, is currently in hand; the competent authority to adjudicate this claim is the Coastal Subdirector of Labour, in accordance with the provisions of the relevant norms of the "Statute of the legal administrative regime of the executive function", issued through Executive Decree No. 1634 and published in Official Register No. 411, dated 31 March 1994, second supplement. The case has reached the stage where it is pending resolution by the aforementioned authority, and following the pronouncement issued by the Coastal Subdirector of Labour, a legal appeal can be made if either of the parties considers themself adversely affected.

C. The Committee's conclusions

1. 268. The Committee observes that the allegations in this case are set in the context of a conflict between two union sectors in the process of elections to a union Board. Although the CTE (which supports the Board presided over by Ms. Greta Hoyos) alleges interference by the administrative authorities in ordering, by means of a Ministerial Resolution a call for elections to the Board of the Single National Central Committee of Workers of EMETEL - an act which was successfully challenged before the Constitutional Court - the CLAT (which supports the Board presided over by Mr. Agapito Moreira), on the contrary objects to the decision of the Constitutional Court in this connection.
2. 269. With regard to the allegation presented by the CTE about interference by the administrative authorities in calling by means of the Ministerial Resolution of 26 September 1996, for elections to the Board of the Single National Central Committee of Workers of EMETEL S.A., CONAUTEL, the Committee takes note that the Government states that: (i) the application of the Ministerial Resolution convoking the elections was suspended by decision of the Constitutional Court on 12 June 1997, on acceptance of an appeal made by Ms. Greta Hoyos (who heads one of the lists for service on the Board of CONAUTEL); (ii) the Ministry of Labour ordered the Director-General of Labour to implement the ruling of the Constitutional Court; (iii) on 19 August 1997, at the request of CONAUTEL, the administrative authority proceeded to register the Board presided over by Ms. Greta Hoyos.
3. 270. With regard to the criticism by CLAT of the decision of the Constitutional Court ordering the non-application of ministerial resolution of 26 September 1996, which called for elections to the Board of CONAUTEL, the Committee observes that it can be seen from the Government's reply that the list for service on the Board of CONAUTEL headed by Mr. Agapito Moreira came out as the winner in the elections called by means of the Ministerial Resolution, and that after the decision of the Constitutional Court which ordered the non-applicability of the Ministerial Resolution and the subsequent registration of the Board headed by Ms. Greta Hoyos, Mr. Agapito Moreira presented a claim contesting the registration before the administrative authority, and that according to the Government, when this authority pronounces its judgement, whichever of the parties that considers itself to be adversely affected by the judgement will be able to make an appeal to the legal authorities.
4. 271. In this context the Committee wishes to recall that "the Committee is not competent to make recommendations on internal dissensions within a trade union organization, so long as the Government did not intervene in a manner which might affect the exercise of trade union rights and the normal functioning of an organization. In cases of this nature when there have been internal dissensions, the Committee has also pointed out that judicial intervention would permit a clarification of the situation from the legal point of view for the purpose of settling the question of the leadership and representation of the organization concerned" (see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 965). Given that there was in the first instance interference by the Ministry of Labour in the election process, although it was subsequently remedied through judicial channels, the Committee underlines that "the right of workers to elect their representatives freely should be exercised in accordance with the statutes of the occupational associations and should not be subject to the convening of elections by ministerial resolution" (see Digest, op. cit., para. 393). In these circumstances, the Committee trusts that in future the administrative authorities will abstain from interfering unduly in the exercise of the right of the workers' organizations of the EMETEL enterprise to freely elect their representatives, as guaranteed by Convention No. 87.