Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the joint observations of the National Federation of Education Workers (UNE) and of Public Services International in Ecuador (PSI–Ecuador), received on 1 September 2017, which refer, among other things, to the adoption on 19 May 2017 of the Basic Act reforming public sector legislation (Basic Reform Act) and also to allegations of anti-union discrimination. The Committee requests the Government to send its comments on the aforementioned allegations of anti-union discrimination and also on those contained in the 2016 observations of the UNE and PSI–Ecuador. The Committee also urges the Government to send its comments on the specific allegations of anti-union dismissals at an enterprise in the banana industry contained in the 2014 observations of the International Trade Union Confederation (ITUC).

The Committee welcomes that the Government has agreed with the Office on the provision of technical assistance in the context of the legislative reforms under way.

Application of the Convention in the public sector

Articles 1, 2 and 6 of the Convention. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee urged the Government to take the necessary measures to ensure that the legislation applicable to the public sector contains provisions, at least for workers not covered by the exception in Article 6 of the Convention, prohibiting and establishing dissuasive penalties for any acts of anti-union discrimination and interference, as set out in Articles 1 and 2 of the Convention, and also urged the Government to take the necessary measures to ensure that the use of the “compulsory purchase of redundancy” procedure does not give rise to acts of anti-union discrimination. In this respect, the Committee notes with interest that the Basic Reform Act contains provisions which: (i) protect public servants against any act of discrimination related to the exercise of their right to organize (section 11); (ii) protect the independence of organizations of public servants and prohibit interference by the public authorities in the establishment of such organizations (section 11); and (iii) provide that any termination of employment or “compulsory purchase of redundancy” with compensation for public servants who are members of the board of the Civil Service Committee shall be null and void (general provisions). Recalling the importance of having effective and dissuasive penalties in this respect, the Committee requests the Government to provide information on the penalties and compensation applicable to acts of discrimination and anti-union interference committed in the public sector, indicating the legislative or regulatory provisions that establish them. The Committee also requests the Government to indicate whether, in addition to the Civil Service Committee members, the leaders of organizations of public servants also have extra protection against the termination of employment or benefit from other similar measures.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee observed with deep concern that, in violation of Articles 4 and 6 of the Convention, and despite its reiterated comments and those of other ILO supervisory bodies, the constitutional amendments adopted in December 2015 exclude the public sector as a whole from the scope of collective bargaining. The Committee urged the Government to reopen in the near future an in-depth debate with the trade unions concerned with a view to re-establishing collective bargaining for all categories of workers in the public sector covered by the Convention. The Committee also urged the Government to respect fully the right of workers in the public sector recruited prior to the entry into force of the constitutional amendments to continue negotiating their terms and conditions of employment.

The Committee notes the Government’s indication that: (i) in Ecuador the concept of public servants not engaged in the administration of the State does not exist; (ii) collective bargaining has not disappeared from the public sector since public sector workers hired before the entry into force of the constitutional amendments of 2015 continue to enjoy this right; and (iii) the possibility of taking account of the Committee’s observations in the legislative reforms under way will be examined. The Committee also notes that PSI–Ecuador and the UNE maintain that the Basic Reform Act adopted on 19 May 2017 has missed the opportunity to reintroduce the right to collective bargaining in the public sector since it only recognizes the possibility for dialogue between the Civil Service Committee and the public institutions with respect to a limited number of matters which do not include remuneration.

The Committee observes that, on the basis of the final part of section 326.16 of the Constitution as amended in December 2015, which provides that collective bargaining will only apply to the private sector since the State and the public administration are obliged to take care of the public interest, the Basic Reform Act does not recognize the right to collective bargaining of public servants but establishes, through section 11, a mechanism for social dialogue between the Civil Service Committee and the public institutions. The Committee also observes that section 11 provides that: (i) it is for the Civil Service Committee to take the initiative with regard to the social dialogue process; (ii) social dialogue may cover the following subjects: training and technical instruction; improvements to conditions of work and the working environment; occupational safety and health and the integration of vulnerable groups into the labour market; (iii) the results of the social dialogue will be recorded in a report to be sent to the Ministry of Labour; and (iv) any disputes arising from failure to implement the results of the social dialogue will be submitted to compulsory mediation and, if no solution is reached by this means, the disputes will be referred to the conciliation and arbitration tribunal.

The Committee notes that even though the social dialogue mechanism established by the Basic Reform Act lays down dispute settlement procedures, it does not provide for the conclusion of agreements whereby public sector employees can endorse their conditions of employment. The Committee also notes that the subjects for dialogue are limited and do not include, in particular, questions of remuneration. In this regard, the Committee recalls that, under the terms of Articles 4 and 6 of the Convention, all workers in the public sector who are not engaged in the administration of the State (such as employees in public enterprises, municipal employees and those in decentralized institutions, teachers in the public sector and personnel in the transport sector) are covered by the Convention (see the 2012 General Survey on fundamental Conventions, paragraph 172) and therefore, must be able to engage in collective bargaining concerning their conditions of employment, including pay conditions, and that mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see General Survey, op. cit., paragraph 219). Recalling that the particular characteristics of the public administration may make a degree of flexibility necessary and that the Convention may therefore be compatible with systems that require parliamentary approval of certain conditions of work or financial clauses of collective agreements in the public sector, and observing that in many countries mechanisms are in operation which allow the harmonious coexistence of the public sector’s mission of general interest with the responsible exercise of collective bargaining, the Committee urges the Government once again to reopen an in depth debate with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of workers in the public sector covered by the Convention. The Committee reminds the Government that it may seek support from the Office in the context of the current technical assistance provided. The Committee also requests the Government to provide information on collective agreements signed with public sector workers recruited prior to the entry into force of the constitutional amendments of 2015.

Application of the Convention in the private sector

Article 1. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee requested the Government to take the necessary measures to ensure that the legislation includes a specific provision guaranteeing protection against acts of anti-union discrimination in access to employment. The Committee notes that the Government concurs once again that the current legislation does not contain specific provisions prohibiting anti-union discrimination in recruitment and there is a need to engage in reflection so as to be able to combat effectively any discrimination in employment. In the light of the above and encouraged by the legislative reform process under way with technical assistance from the Office, the Committee trusts that the Government will very soon be in a position to report that a specific provision has been introduced into the legislation guaranteeing protection against acts of anti union discrimination in access to employment.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee pointed out the need to amend section 221 of the Labour Code with respect to the submission of the draft collective agreement so that, where there is no organization with over 50 per cent of the workers as members, minority trade unions may, either alone or jointly, negotiate on behalf of their members. The Committee notes the Government’s indication that it will forward these observations to the authorities responsible for implementing the legislative reforms in progress but that it should also be recalled that the purpose of the existing legislation is to ensure the representativeness of trade unions vis-à-vis employers with a view to concluding majority agreements. The Committee recalls that, while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see General Survey, op. cit., paragraph 226). In light of the above, the Committee once again requests the Government, in consultation with the social partners, to take the necessary steps to amend section 221 of the Labour Code so that, where there is no organization with over 50 per cent of the workers as members, minority trade unions may, either alone or jointly negotiate on behalf of their members. The Committee also requests the Government once again to provide information on the number of collective agreements concluded in recent years and the number of sectors and workers covered.

Noting that the Government has agreed with the Office on the provision of technical assistance, the Committee trusts that the Government will very soon be in a position to report the adoption of legislative provisions that take account of the comments that the Committee has been making for a number of years regarding both the public and private sectors.

[The Government is asked to reply in full to the present comments in 2018.]