Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 393, Mars 2021

1. 416. The complaint is contained in a communication dated 29 January 2019 from the Public Services International (PSI) and the National Confederation of Civil servant of Ecuador (CONASEP).
2. 417. The Government sent its observations in communications dated 10 May 2019, 10 March 2020 and 2 February 2021.
3. 418. 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).
4. 419. In a communication dated 29 January 2019, the complainant organizations allege that, following the establishment of the National Association of Workers of the Civil Registry, Identification and Certification (ANERCIC), the public authorities dismissed, on anti-union grounds, 36 members and leaders of that organization. The complainant organizations specifically allege that: (i) the ANERCIC, a national organization affiliated to the CONASEP, which is composed of permanent officials of the Civil Registry, Identification and Certification, was established on 16 August 2018 and recognized by a ministerial order of 12 October 2018; (ii) the first action taken by the ANERCIC was to request the Civil Registry authorities (hereafter the public institution) to reclassify the posts of all staff in order to comply with the rules on optimization and austerity of public spending approved by the presidency of the Republic in 2018; (iii) on 6 December 2018, the human resources director of the public institution requested, by means of a written memorandum, details of the regular activities carried out by 37 civil servants, stipulating that this process must remain entirely confidential; (iv) on 28 December 2018, through Decision No. 0134-DIGERCIC-CGAJ-DPyN-2018, the Director-General of the institution decided to abolish 36 of the 37 posts about which information had been requested (the post of Mr José Luis Játiva Medina was not abolished as he had a daughter with disabilities in his care); and (v) all of the abolished posts were held by members of the ANERCIC, including its President, Mr Marco Antonio Martínez Jiménez, as well as four other members of the board of the union.
5. 420. According to the complainant organizations, the abolition of 36 permanent posts, all held by ANERCIC members, and the dismissal of five of the organization’s leaders, including its president, were intended to dissolve that union and thus violated Articles 3 and 4 of Convention No. 87 and Articles 1 and 2 of Convention No. 98, both ratified by Ecuador. In this respect, the complainant organizations emphasize that: (i) the dismissals took place a few months after the establishment of the organization and its petition for improved working conditions; (ii) the 36 civil servants were dismissed summarily and unilaterally only 23 days after the human resources director of the institution had requested a report on the functions of their posts; (iii) they were not informed, and still have not been informed, of the technical grounds or other objective reasons for their dismissal; and (iv) the abolition of the posts was not preceded by any consultation with the trade union.
6. 421. The complainant organizations further state that, on this occasion, the Government once again applied Executive Decree No. 813 of 2011, which enables, through the “compulsory purchase of redundancy” procedure, the unjustified and unilateral dismissal of civil servants. The complainant organizations state that this procedure, to which the Committee on Freedom of Association referred in its recommendations regarding Case No. 2926, has not been used by the Government on a large scale since 2012. Lastly, they state that the events contravene the provisions of the Basic Act Reforming Public Sector Legislation of 2017, which prohibits anti-union discrimination and establishes that “the abolition of posts and the compulsory purchase of redundancy for civil servants who are members of the board of the Civil Service Committee shall be null and void”. In light of the above, the complainant organizations request the reinstatement of the 36 dismissed civil servants.

B. The Government’s reply

1. 422. In a communication dated 10 May 2019, the Government provides its comments on the allegations of the complainant organizations, denying that any act of anti-union discrimination had taken place. The Government stated that, since August 2013, the public institution has been implementing a process to modernize its services for citizens and optimize its resources which, given the technological developments related to civil registration operations, has led to a significant decrease in the number of agencies of the institution throughout the country (from 755 in August 2013, to 220 in December 2017 and 207 in December 2018) and a reduction in its workforce (from 3,341 civil servants in 2013 to 2,074 in 2018).
2. 423. The Government adds that, in the context of the above-mentioned optimization policy and in conformity with the provisions of the Basic Act on the Public Service (LOSEP) and its general regulations, a study was required into workforce optimization in the public institution for the year 2018. The Government states in this respect that: (i) the above-mentioned human resources planning process for the year 2018 in the public institution began on 5 February 2018 upon the request of the Ministry of Labour; (ii) Official Letter No. DIGERCIC-DIGERCIC-2018-042-O of 31 October 2018, sent to the Ministry of Labour, established the need to determine the number of posts to be abolished during the 2018 financial year; (iii) Official Letter No. MDT-SFSP-2018-2011, of 29 November 2018, established the existence of a surplus of civil servants in the public institution, whose posts were not essential to the institutional structure because their activities were duplicated by other positions; (iv) technical report No. DIGERCIC-CGAF-DARH-0243-I, of 13 December 2018, determined the 36 fixed-term posts to be abolished, taking into account the personal situation of each of the concerned workers and, in particular, verifying that they did not have severe disabilities or responsibility for someone with a severe disability, in accordance with the legislation; (v) under Decision No. MDT-SFSP-2018-0000078, of 28 December 2018, the Ministry of Labour approved the abolition of 36 of the institution’s fixed-term posts; (vi) Memorandum No. DIGERCIC-CGAF-DF-2019-001-M, of 8 January 2019, informed the 36 persons affected of their dismissal and they were paid the compensation determined by the Ministry of Labour, which amounted to a total, for the 36 persons, of US$1,525,297; and (vii) the entire above-mentioned procedure was conducted in line with the rules established under the LOSEP and its general regulations regarding the abolition of posts in the public administration.
3. 424. In relation to the complainant organizations’ allegations that the above-mentioned abolition of the 36 posts did not comply with the provisions on anti-union discrimination of the Basic Act reforming public sector legislation of 2017, the Government states the following: (i) the ANERCIC obtained its legal personality on 12 October 2018 under Ministerial Decree No. MDT-089-2018; (ii) the ANERCIC is a non-profit social organization regulated by the provisions of the Civil Code and Executive Decree No. 193 of 23 October 2017; (iii) this is provided in section 3 of its statutes, which indicates that “[…] it shall be a non-profit social organization that aims to defend the rights of its members and improve their economic and social situation […]”; (iv) the ANERCIC is therefore not a trade union organization governed by the Labour Code, but a non-profit social organization governed by the Civil Code; and (v) in light of the above, this case cannot involve a violation of the right to organize and collective bargaining established in Convention No. 98 and therefore the anti union discrimination alleged by the ANERCIC cannot exist.
4. 425. In a communication of 10 March 2020, after noting that the Basic Act Reforming Public Sector Legislation of 2017 recognizes and protects the right of civil servants to organize, the Government reiterates that the ANERCIC is registered not as a trade union but as a social organization and therefore the alleged anti-union discrimination could not take place. The Government adds that: (i) the LOSEP provides for a number of ways to definitively terminate the employment of civil servants, including the abolition of posts with compensation and the purchase of redundancy with compensation; (ii) while in both cases the terminations must be duly justified in the respective technical and legal reports, the abolition of posts and the purchase of redundancy with compensation are two different arrangements with different purposes, and each arrangement is therefore subject to specific requirements; (iii) in the present case, the abolition of posts with compensation was the arrangement used; (iv) in full compliance with section 60 of the LOSEP and with the Constitution of Ecuador, the abolitions were supported by technical reports and preceded by a process carried out on technical, functional and economic grounds, based on the principles of rationalization, prioritization, optimization and functionality, and therefore there was no discrimination against the ANERCIC and its members.
5. 426. In a communication dated 2 February 2021, the Government reiterates that: (i) the abolition of posts has been carried out in accordance with due process of law and in accordance with the legal regulations in force; and (ii) the ANERCIC, due to its legal nature which sets it apart from being a trade union or labour organization as such, is a purely social organization governed by the Civil Code. The Government further states that: (i) the complainants have neither requested a dialogue nor filed a complaint with the public institution or the Ministry of Labour, and it is therefore understood that the complainants have accepted the terms of the termination of their contracts, which have been legally substantiated and have given rise to the payment of compensations calculated in accordance with the provisions of the law; and (ii) since the procedure to dismiss the career civil servants has been carried out, there has been no dialogue or agreement to address the complaint filed with the ILO’s Committee on Freedom of Association.

C. The Committee’s conclusions

1. 427. The Committee observes that the present case concerns the dismissal of 36 members of the ANERCIC, including its president and four further members of its executive committee, a few months after the establishment of the organization. In this respect, the Committee notes that the complainant organizations specifically allege that: (i) the ANERCIC was established in August 2018 to defend the interests of career officials in the above-mentioned public institution and was officially recognized in October 2018; (ii) the first action taken by the ANERCIC was to request the reclassification of the posts of the entire staff of the public institution in order to comply with current standards; (iii) on 6 December 2018, the human resources director of the public institution requested details on the regular activities of 37 civil servants, stipulating that this process must remain entirely confidential; (iv) on 28 December 2018, the Director-General of the public institution decided to abolish 36 of the 37 posts about which information had been requested (the post of a worker who had a daughter with disabilities in his care was not abolished); and (v) all of the 36 abolished posts were held by the ANERCIC members, including its President, Mr Marco Antonio Jiménez, as well as four further members of the union’s executive committee. The Committee notes that, with regard to the alleged events, the complainant organizations state that: (i) the elimination, a few months after the establishment of the ANERCIC, of 36 permanent posts all held by members of that organization, including its president and four members of its leadership, was intended to dismantle the ANERCIC; (ii) the civil servants were dismissed summarily, without prior consultation with the trade union organization and were not informed of the technical grounds or other reasons for their dismissal; (iii) on this occasion, Executive Decree No. 813 of 2011 was applied, which allows the Government to dismiss civil servants without justifying its decision, through the so-called “compulsory purchase of redundancy” procedure; this Decree had been the subject of the Committee on Freedom of Association’s recommendations regarding Case No. 2926; and (iv) the new provisions of the Basic Act reforming legislation on the public sector of 2017, which prohibits anti-union discrimination in general and the application of Executive Decree No. 813 to the members of the boards of the Civil Service Committees in particular, were disregarded.
2. 428. The Committee notes the Government’s indication that no anti-union discrimination took place, but rather staff numbers were reduced as part of a process of optimizing and rationalizing the activities of the public institution. The Committee notes the Government’s particular indications that: (i) the above-mentioned optimization process, which has been ongoing since 2013 and is related, inter alia, to the significant technological developments in civil registry operations, has led to a significant reduction in the numbers of agencies and staff of the public institution since 2013; (ii) this process continued during 2018 and the need to eliminate 36 posts that had become redundant was identified in October/November; (iii) having ascertained that the civil servants in question did not suffer from a severe disability or have someone with a severe disability in their care, they were made redundant and received substantial financial compensation; the laws in force were respected throughout the process; (iv) in particular, section 60 of the LOSEP, concerning the abolition of posts with compensation, which provides that the abolitions must be substantiated by technical reports setting out the technical, functional and economic reasons for such decisions; (v) the complainants have neither requested a dialogue nor filed a complaint with the public institution or the Ministry of Labour regarding the dismissal process; and (vi) in accordance with the legislation in force and its own statutes, the ANERCIC is not a trade union, but a non-profit social organization governed by the Civil Code, and this case cannot therefore involve anti-union discrimination in violation of ILO Convention No. 98.
3. 429. Concerning the Government’s statement that the ANERCIC is not a trade union organization, but rather a social organization and cannot therefore have been subjected to anti-union discrimination, the Committee notes that: (i) under the current Ecuadorian legislation,, workers covered by the Labour Code, i.e. private sector workers and public sector manual workers, are organized into trade unions, while civil servants can exercise their freedom of association through the establishment of civil servants’ organizations governed by the rules on social organizations; and (ii) the ANERCIC statutes to which the Government refers establish that “it shall be a non-profit social organization that aims to defend the rights of its members and improve their economic and social situation”.
4. 430. In this respect, the Committee recalls that, in a previous case related to the alleged anti union use of Executive Decree No. 813 of 2011, which permits the dismissal with compensation of civil servants without providing the grounds for termination (“compulsory purchase of redundancy” procedure), the Committee drew the Government’s attention to the fact that “the principle of adequate protection from acts of anti union discrimination is fully applicable to workers in the public sector in general, and that it applies in practice to the compulsory purchase of redundancy and especially to unfair dismissal, whatever the name given to organizations that may be set up by civil servants and workers under the national law in force” (see Case No. 2926, 370th Report of the Committee on Freedom of Association, October 2013, paragraph 386). In light of the foregoing, the Committee regrets that it must once again emphasize that insofar as civil servants’ organizations are intended to promote the economic and social interests of their members, they are fully covered by the principles of freedom of association in general and protection against anti union discrimination in particular, regardless of their legal name or regulations under national legislation. Noting that the legislation applicable to the public sector reformed in 2017 provides special protection against dismissal that applies only to the leaders of the Civil Services Committees (a specific form of representation for public sector workers established by that legislation), the Committee trusts that the Government will take all necessary measures to ensure that the above-mentioned legislative provisions protect all leaders of public workers’ organizations against possible acts of anti-union discrimination.
5. 431. In relation to the alleged anti-union nature of the dismissal of 36 civil servants who were members of the ANERCIC, the Committee takes particular note of the Government’s indication that, in accordance with section 60 of the LOSEP, the abolition of the 36 posts was based on objective criteria and was part of a process of optimization and rationalization that the public institution has been carrying out since 2013, which has led to a significant reduction in staff since that date. The Committee also notes the indication of the complainant organizations that all of the dismissed workers were ANERCIC members, including five members of its leadership, and their allegations that the dismissals were not preceded by consultation with the trade union or accompanied by an indication of the technical grounds upon which they were based. In light of the above, the Committee requests the Government to ensure that the alleged anti-union nature of the dismissal of 36 members of the ANERCIC is investigated in the near future by an independent body. The Committee requests the Government to keep it informed regarding this investigation and its outcomes. Furthermore, noting the Government’s statement that neither the public institution concerned nor the Ministry of Labour have received complaints about the dismissal process in question, the Committee requests the complainant organizations to provide information on any administrative or judicial action taken in this respect.
6. 432. Lastly, noting that this case refers to allegations of anti-union discrimination in the context of a restructuring process, the Committee recalls that it has repeatedly emphasized that it is important that governments consult with trade union organizations to discuss the consequences of restructuring programmes on the employment and working conditions of employees [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1555]. In this regard, the Committee notes that, in its reply, the Government did not refer to contacts between the public institution and the civil servants’ organizations concerned before the abolition of the above-mentioned posts. Reiterating its recommendations regarding Case No. 2926 (see 370th Report of the Committee on Freedom of Association, paragraph 389), the Committee once again requests the Government to take the necessary measures to ensure that the civil servants’ organizations concerned are consulted on staff reduction plans with a view, inter alia, to preventing possible instances of anti-union discrimination. The Committee requests the Government to keep it informed in this regard.