Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ecuador (Ratification: 1959)

The Committee notes the Government's report.

1. The Committee recalls that in its previous observation it had noted that two Bills were drafted in September 1997 during the course of a technical assistance mission requested by the Government. These draft Bills provide for:

-- the repeal of section 1 of Decree No. 2260 which imposes the requirement of the prior advice of the National Secretariat of Administrative Development (SENDA) on draft collective agreements in the public sector (a provision which in itself is not contrary to the Convention but the repeal of which was the subject of consensus by the social partners and the authorities interviewed by the mission); in its report, the Government indicates that SENDA no longer exists and that provisions are due to be taken concerning who will assume the responsibility for the functions discharged by this Institute or alternatively the provision noted by the Committee will no longer remain in force in the absence of a body to implement the standard; and

-- the addition to section 3, paragraph (g), of the Civil Service and Administrative Careers Act whereby workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres are covered by the Labour Code, thereby enabling these workers to enjoy the right to organize and the right to bargain collectively.

The Committee observes that the Government, referring to the technical assistance mission, indicates in its report that: (1) at no time has it rejected the possibility of proposing reforms to the legislation and if the Ministry of Labour found it necessary, it would have recourse once again to the technical assistance of the Office to update Ecuadorean labour legislation; (2) the Ministry of Labour is very well disposed to make best use of the positive aspects of the technical assistance mission which visited Ecuador in 1997; and (3) it requests the Committee to indicate what could be retained from the agreements reached during the 1997 mission in the light of the new political Constitution so that it can follow them up as appropriate.

In this regard, the Committee requests the Government to take the necessary measures to amend section 3, paragraph (g), of the Act pertaining to the Civil Service and Administrative Careers so that workers in official departments or other public sector institutions as well as private sector institutions in the social or public spheres enjoy the rights enshrined in the Convention.

2. The Committee recalls that in its previous observations it had requested the Government to take measures: (i) to include in its legislation provisions which guarantee protection against acts of anti-union discrimination at the time of recruitment; and (ii) to amend paragraph 2 of section 229 of the Labour Code relating to the submission of a draft collective agreement which provides in its second paragraph that "in public sector institutions, entities and enterprises or those in the private sector in the social or public sphere, in which no works committees exist, the workers subject to the Labour Code shall set up a sole central committee, be it on the national, regional, provincial or branch level, as appropriate, established by more than 50 per cent of the said workers" so that when minority trade unions do not meet this percentage, they may, on their own or jointly, negotiate at least on behalf of their own members. The Committee regrets to note that the Government's report does not mention these matters and once again requests it to take the necessary measures to amend these provisions in line with the requirements of the Convention.

3. Moreover, the Committee had noted in its previous observation that teaching staff and heads of educational institutions as well as those who carry out technical and professional functions in the education sector are subject to the laws pertaining to education and the salary scales of teachers referred to in section 3(h) of the Civil Service and Administrative Careers Act, and therefore do not enjoy the right to organize and to bargain collectively.

In this respect, the Committee notes that the Government indicates that although teaching staff and heads of educational institutions and others do not enjoy the right to organize or bargain collectively, they do have the right of association, through which they raise issues concerning their collective rights and defend those rights under the auspices of the National Union of Educational Personnel. Within the context of the special rules applying to them, these educational personnel use all valid means to further the aspirations and rights of their members, in a similar manner as do workers who enjoy the right to organize and bargain collectively.

In these conditions, the Committee would recall that the Convention guarantees the right to collective bargaining of teachers at all levels and requests the Government to take measures with a view to amending legislation so that teachers have the right to bargain collectively not only at the national level but also at the local and workplace levels.

4. The Committee expresses the firm hope that the Government will provide detailed information in its next report on any progress made with regard to the issues raised.