Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee notes the Government’s response to the observations of Public Services International in Ecuador (PSI-Ecuador) of August 2019.

The Committee also notes the observations of the Trade Union Association of Agricultural, Banana and Peasant Workers (ASTAC), received on 24 January 2020, and the observations of PSI-Ecuador, received on 25 September 2020, and the joint observations of ASTAC and the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020. The Committee notes that these observations refer to, in addition to the issues examined in the context of the present comment, allegations of anti-union dismissals and a number of administrative and legislative measures adopted by the Government during the pandemic that were not subject to tripartite consultation, such as the Basic Act on humanitarian support to combat the COVID-19 health crisis, of 22 June 2020, which the organizations claim introduced regressive reforms to the Labour Code with regard to the rights of public sector workers in addition to new violations of collective bargaining rights. The Committee requests the Government to send its comments in this regard.

Technical assistance. In its previous comment, the Committee welcomed the Government’s request for technical assistance from the ILO in relation to the legislative reform process and with a view to following up on the observations and recommendations made by the ILO supervisory bodies. For this reason, the Committee’s observation was limited to a brief summary of the issues to be addressed, having expressed trust that the technical assistance would enable the Government to adopt the necessary measures in this regard. The Committee notes the report of the technical assistance mission carried out in Ecuador from 16–20 December 2019. In this regard, it notes that: (i) the mission submitted to the tripartite constituents a draft roadmap to address the priority issues discussed in the meetings, which provided that the constituents would in March 2020, with ILO technical assistance, commence tripartite dialogue with a view to adopting specific measures to address the comments of the ILO supervisory bodies; and (ii) the mission encouraged the tripartite constituents to finalize the roadmap as soon as possible and invited them to continue the dialogue with the aim of achieving tangible and sustainable outcomes. The Committee regrets to observe that the Government’s report omits all reference to the technical assistance mission and the draft roadmap. The Committee notes in this regard the allegations of PSI-Ecuador that the Government failed to act on its commitment to the mission to hold a new tripartite meeting in January 2020 to sign the roadmap.

The Committee recalls below the points it has emphasized in its previous comments and which require the adoption of specific measures to bring the legislation into full conformity with the Convention.

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 noted the protections against anti-union discrimination and interference set out in the Basic Act reforming the legislation regulating the public service (Basic Reform Act). It also observed that Ministerial Order No. MDT-2018-0010, which regulates the exercise of the right to organize of public servants, seemed to be limited to acts of interference. Recalling the importance of effective and dissuasive penalties in this regard, the Committee requested the Government to provide information on: (i) the penalties and compensation applicable to acts of anti-union discrimination and interference committed in the public sector; (ii) whether, in addition to the leadership of the Civil Service Committee, the leaders of organizations of public servants also benefit from additional protection against the elimination of positions or benefit from other similar measures, including in the event of recourse to the “purchase of compulsory redundancy” mechanism; and (iii) the outcome of a legal action to have the above mechanism declared unconstitutional that, according to PSI–Ecuador and the National Federation of Education Workers (UNE), had been submitted. In this regard, the Committee notes the Government’s indication that: (i) the second general provision of the Basic Reform Act specifies that in the event of dismissal due to retrenchment and the purchase of compulsory resignation with compensation or unfair dismissal of members of the Civil Service Committee, the provisions of the Labour Code that regulate “dismissal without effect” as provided for in section 195.2 of the Labour Code are applicable; (ii) sections 187 and 195(1) and (2) of the Labour Code provide that the unfair dismissal of trade union leaders is considered to be without effect; and (iii) section 195.3 of the Labour Code provides that, when dismissal is declared to be without effect, the employment relationship is considered not to have been interrupted and outstanding wages are ordered to be paid with a 10 per cent supplement; and if the worker decides not to continue the employment relationship, he or she shall receive compensation equivalent in value to the yearly wage the worker had been receiving, in addition to compensation for unfair dismissal. The Committee observes, however, that it is not clear from the above whether there are any provisions applicable to the public sector that explicitly protect leaders of organizations of public servants who are not part of the leadership of the Civil Service Committee. In this context, the Committee requests the Government to adopt the measures necessary to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference and that set forth dissuasive penalties for these acts. In addition, the Committee once again requests the Government to provide information on the outcome of the legal action that, according to PSI-Ecuador and the UNE, had been brought to have the “purchase of compulsory resignation” mechanism declared unconstitutional.

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 that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 do not recognize the right to collective bargaining for public servants and that only public sector workers, who are regulated by the Labour Code, may engage in collective bargaining. The Committee also noted that the constitutional amendments of 2015, which excluded the entire public sector from the scope of collective bargaining, had been nullified by the Constitutional Court (ruling No. 018-18-SIN-CC of 1 August 2018). The Committee previously urged the Government to reopen an in-depth discussion with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of public employees covered by the Convention. In this regard, the Committee notes the Government’s indication that although dialogue has been maintained with public sector trade unions, the lack of cohesion between the representative trade unions and their divergent criteria and interests has made discussions difficult. The Committee also notes that, according to allegations made by the ASTAC and CEDOCUT in their observations, despite the fact that on 4 December 2019 the Ministry of Labour issued Ministerial Order No. 373 giving effect to Constitutional Court ruling No. 018-18-SIN-CC of 2018, a high percentage of public sector institutions have not complied with the Order. They also allege that even individuals who entered employment after the amendments were declared unconstitutional remain in a legal limbo, being considered neither public employees nor public sector workers, and that as a result they are not allowed to be members of existing trade unions or engage in collective bargaining. The Committee once again 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 service 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 the fundamental Conventions, paragraph 172) and should therefore be permitted to collectively bargain their conditions of employment, including wage conditions, and that mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see the 2012 General Survey on the fundamental Conventions, paragraph 219). The Committee once again urges the Government to intensify its efforts 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. It also requests the Government to adopt the necessary measures to ensure the full implementation of Ministerial Order No. 373 in the various State institutions and to provide information in this regard.

Article 1. Adequate protection against acts of anti-union discrimination. The Committee once again recalls that it has been commenting for many years on the need to include provisions in the legislation guaranteeing protection against acts of anti-union discrimination in access to employment. In this regard, the Committee notes the Government’s indication that it has no current plans to adopt specific legislation on this issue, since the labour legislation in force provides adequate guarantees and protection for workers to exercise their right and freedom to organize when they deem it necessary. In this regard, the Committee emphasizes the need to include the above-mentioned provisions in the legislation and requests the Government to provide information in its next report on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee previously observed that, in accordance with section 221 of the Labour Code, collective labour agreements must be concluded with the works council, or, if one does not exist, with the organization with the largest number of worker members, provided that it represents over 50 per cent of the enterprise’s workers. The Committee previously requested the Government, in consultation with the social partners, to adopt the necessary measures to amend section 221 so that if there is no organization that represents more than 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. In this respect, the Committee notes the Government’s repeated indication that it does not plan to amend section 221 of the Labour Code, since its provisions are strictly aligned with the principles of democracy, participation and transparency insofar as the benefits obtained in the collective agreement apply to all workers in the employing enterprise or institution. The Committee is bound to once again recall in this regard that, while it is acceptable for the union which represents the majority or a high percentage of workers in a bargaining unit to 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 the 2012 General Survey, paragraph 226). The Committee therefore urges the Government, in consultation with the social partners, to finally adopt the necessary measures to amend section 221 of the Labour Code so that, where there is no organization that represents over 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee also once again requests the Government to provide information on the number of collective agreements signed and in force in the country, and on the sectors and the number of workers covered by these agreements.

Ministerial Orders establishing new forms of contract for banana plantation workers and agricultural workers. The Committee previously requested the Government to provide its comments regarding the allegations made by the ASTAC that Ministerial Orders Nos. MDT-029-2017, MDT-074-2018 and MDT-096-2018, which establish new forms of contract for banana plantation workers and agricultural workers, would obstruct the effective exercise of the right to collective bargaining in those sectors. In this regard, the Committee notes the Government’s indication that: (i) the forms of contract issued by the Ministry of Labour are not intended for a specific group of people and do not specifically cover certain jobs; and (ii) the form of contract is for temporary jobs, which are common in all economic activities and particularly in the banana sector, but that it was precisely this fact that had allowed contractual relationships in the banana sector to be regularized and enabled workers to benefit from all their labour rights. The Committee also notes that, according to the Government’s indications, during the June 2019–June 2020 period, a total of four collective agreements were signed and in force in the agricultural sector and three in the banana sector. The Committee notes this information and requests the Government, in the context of the statistics requested in the preceding paragraph, to continue providing detailed information on the existing collective agreements in the above-mentioned sectors, and on the number of workers covered.

The Committee regrets to observe that, although it has made available the requested technical assistance, it has not to date observed any progress in the adoption of the necessary measures to bring the legislation into line with the Convention. The Committee particularly regrets that it has not received information from the Government on the follow-up to the ILO mission of December 2019. The Committee urges the Government to intensify its efforts to adopt the necessary measures in relation to the points emphasized in its comments and, to this end, to hold a constructive dialogue with all representative employers’ and workers’ organizations with the aim of achieving tangible and sustainable results. The Committee requests the Government to provide information on any progress made in this respect.

[The Government is asked to reply in full to the present comments in 2021.]