Interim Report - Report No 331, June 2003

Case No 2138 (Ecuador) - Complaint date: 14-MAY-01 - Closed

Allegations: Refusal to register a trade union at the enterprise COSMAG – default on a collective agreement (at Cervecería Andina S.A.) – refusal to convene an arbitration tribunal in the case of the Hotel Chalet Suisse – legislation restricting trade union rights – criminal proceedings brought against 11 trade union officials who had prompted a work stoppage in the social security sector.

1. 396. The Committee last examined this case at its March 2002 meeting, when it submitted an interim report [see 327th Report, paras. 525-547]. The ICFTU submitted further allegations in a communication dated 3 April 2002 and the CEOSL in a communication dated 17 June 2002.
2. 397. The Government replied in communications dated 2, 11, 25 and 29 July 2002, 6 and 27 January and 24 March 2003.
3. 398. 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. Previous examination of the case

1. 399. Following its examination of the case at its March 2002 meeting, the Committee formulated the following recommendations on the issues that remained pending [see 327th Report, para. 547]:
2. – As regards the alleged denial of registration to the trade union of the COSMAG security company and intimidation of workers to make them renounce union membership in the context of the delay in the registration process, the Committee requests the Government to take measures to investigate whether there has been any kind of pressure on the enterprise’s workers not to participate in the establishment of the trade union, and, if so, to apply legal sanctions and promptly register the trade union in question. The Committee requests the Government to keep it informed of developments in that respect.
3. – As regards the allegation of default on the collective labour agreement by the Cervecería Andina S.A. enterprise (specifically, it is alleged that the enterprise has defaulted on the clause relating to salaries and wages), the Committee requests the Government to take measures to investigate and, if the allegations are found to be true, to ensure that the relevant collective agreement is observed.
4. – As regards the allegations in connection with article 85 of the Economic Transformation (Ecuador) Act (private sector), which allows the hiring of workers on an hourly basis, the Committee requests the Government to provide information on the application of the article (specifically, whether workers hired by the hour have the right to establish or join the organizations of their choice and whether they enjoy collective bargaining rights).
5. – As regards the allegations in connection with article 94 of the Economic Transformation (Ecuador) Act (private sector), which provides for the standardization of salaries, the Committee requests the complainant organization and the Government to provide information on the application of this article (specifically whether it implies that salary levels may not be freely set through collective bargaining).
6. – As regards the allegations in connection with Title 30 of the Promotion of Investment and Citizen Participation Act, relating to the proportion of workers (15 per cent) that may be employed under work probation contracts, the Committee requests the Government to inform it whether such workers enjoy the rights conferred by Conventions Nos. 87 and 98.
7. – As regards the allegations in connection with articles 190 and 191 of the Promotion of Investment and Citizen Participation Act, which, according to the CEOSL, allow the employer to negotiate a free collective labour agreement with the workers even if they are not organized into a trade union, the Committee recalls that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, and request the Government promptly to communicate its observations on the issue.
8. – The Committee requests the Government to communicate without delay its observations on the alleged failure by the administrative authority to convene the Conciliation and Arbitration Tribunal in accordance with the request made by the Workers’ Committee of the Hotel Chalet Suisse through the submission of a collective agreement.
9. B. New allegations
10. 400. In a communication dated 3 April 2002, the International Confederation of Free Trade Unions (ICFTU) alleges that on 8 March 2002, at the Ecuadorian Social Security Institute (IESS), workers protected under the Labour Code held an assembly in which they decided to implement a work stoppage to demand a wage increase from the authorities, as well as an increase in pension rates for retired workers and orphans. It also alleges that, in response to this legitimate action, the general director of the IESS submitted a complaint to the District Procurator’s Office in Pichincha, in which he requested that criminal proceedings be brought against 11 trade union officials of the IESS: Mr. Roberto Checa, Ms. Ana Herrera, Ms. Marlene Cartagena, Mr. José Ortiz, Ms. Gloria Correa, Mr. Wilson Salguero, Mr. Lenín Villalba, Mr. Bolívar Cruz Vásquez, Ms. Judich Chuquer, Mr. Angel López and Mr. Adolfo Nieto, who he accused of being behind and participating in a flagrant offence of sabotage. According to the management of the trade union, this complaint is tendentious and unfounded and seeks to turn a labour problem into a criminal matter.
11. 401. In a communication dated 17 June 2002, the CEOSL alleges that the Government is claiming only to know unofficially about the labour dispute that occurred at the enterprise Cervecería Andina S.A., when in reality numerous documents on this matter already exist (claims dated 26 December 2000, 2 and 21 February 2001, as well as four rulings handed down by the general director of labour on 20 June and 18 July 2000, and 29 January and 6 March 2001).
12. C. The Government’s replies
13. 402. In its communications of 2, 11, 25 and 29 July 2002, 6 and 27 January and 24 March 2003, referring to the alleged denial of registration to the trade union of the COSMAG security company, the Government indicated that there has been no such refusal; during the legal deadline of 30 days for the registration of the union, a number of workers renounced their membership which meant that the union did not have the legal minimum number of members; in addition, the enterprise contested the requested registration. The Government points out that Convention No. 87 does not detail a specific minimum number of members in order to be able to organize; this matter will be of particular interest for discussion when there is a possibility of a tripartite dialogue. As to possible pressure by the employer not to allow the trade union, the Government indicates that it sent an investigative report prepared by the labour inspectorate to clarify the facts (this report was not received by the ILO).
14. 403. The Government indicates that a verification inspection was carried out by the labour inspectorate concerning the alleged default on the collective labour agreement concluded by the Cervecería Andina S.A. enterprise and it was found that there had been no such default and that the only thing the enterprise committee had requested was compliance with a Ministry of Labour agreement (No. 080 of 2000).
15. 404. The Government adds that there is nothing to stop workers contracted on an hourly basis from setting up associations or trade unions. The Labour Code does not contain any exceptions as regards the enjoyment of trade union rights by workers on probation contracts. The Government explains, furthermore, that the “standardization of salaries” in the private sector has no effect whatsoever on the freedom to bargain collectively, which remains in force.
16. 405. As to the recommendations of the Committee concerning articles 190 and 191 of the Promotion of Investment and Citizen Participation Act, the Government states that the Collective Agreements Recommendation, 1951 (No. 91), is an illustrative instrument but is not binding. It is both relevant and a priority that workers’ rights be looked after by a trade union organization but workers cannot be forced to organize. Article 190 of the Act seeks to achieve the application of Convention No. 98. The Government also announces the dispatch of observations concerning the allegations relating to the Hotel Chalet Suisse.
17. 406. Lastly, the Government provides press cuttings which show that in August 2002 the Government Minister and the representatives of the Ecuadorian Social Security Institute (IESS) signed an agreement which makes provision for a wage increase of 20 per cent (the worker sector initially requested an increase of 300 per cent), with the offer that there would be no type of retaliation (reprisals) against the leaders of the work stoppage. This agreement spelt the end of the stoppage of the IESS services. The Government points out that article 36(10) of the Constitution prohibits the stoppage for any reason of health services (medical attention and hospital services), noting that when the services were stopped, there was no thought of, suggestion of, or willingness to negotiate minimum services by the worker sector. It was therefore a long, wrongful and illegal (almost two months) stoppage that was conducted by the public officials of the IESS (where, the Government underlines, most of the employees are not public officials but workers governed by the Labour Code, who have their own collective agreements and who did not support the work stoppage). Owing to this stoppage, which generated a national health crisis, innumerable health problems which could not be attended to in private clinics had unfortunate outcomes. The country was also deprived of pension services owing to the stoppage by the abovementioned minority.
18. 407. The Government adds that in cases of decisions by the Procurator concerning matters of a purely criminal nature, due process is guaranteed, it being understood that the facts in question are not associated with the exercise of the labour or trade union rights of those responsible.

D. The Committee’s conclusions

1. 408. As regards the alleged denial of registration to the trade union of the COSMAG security company on the grounds that the number of members did not reach the minimum number stipulated in legislation (30) owing to pressure by the enterprise to make them renounce union membership, the Committee notes the Government’s statement that a number of workers renounced their membership as well as the fact that the labour inspectorate has carried out an investigative report to clarify the facts. The Committee requests the Government to send it that report as, although the Government states that it has already done so, the report has not been received.
2. 409. Concerning the alleged default on certain clauses relating to remuneration in the prevailing collective agreement by the Cervecería Andina S.A. enterprise, the Committee notes that the labour inspectorate found that there had been no default.
3. 410. Furthermore, the Committee notes the Government’s statement concerning workers contracted on an hourly basis and workers on probation contracts, whereby the Labour Code does not contain any exceptions as regards the enjoyment of trade union rights.
4. 411. Concerning the allegation objecting to article 94 of the Economic Transformation (Ecuador) Act which provides for the “standardization of salaries” (the article concerned provides the following: “Standardization of salaries. As from the entry into force of this Act, the amounts corresponding to the fifteenth monthly salary and the sixteenth salary will be added to the remuneration received by workers in the country’s private sector; as a result, said wage components will no longer be paid in the private sector.”), the Committee requests the complainant organizations to indicate specifically the manner in which the application of this provision violates trade union rights. The Committee also requests the Government to communicate its position in this respect in greater detail.
5. 412. With regard to the allegations in connection with articles 190 and 191 of the Promotion of Investment and Citizen Participation Act, which allow the employer to negotiate a free collective labour agreement with the workers even if they are not organized into a trade union, the Committee notes the Government’s statements and asks it to send the up-to-date text of the Act so that it can decide on the allegations with all the elements before it.
6. 413. With regard to the new allegations by the ICFTU concerning the criminal proceedings brought against 11 trade union officials of the Ecuadorian Social Security Institute (IESS) in conjunction with a work stoppage, the Committee notes that, according to the Government, the Government Minister and the representatives of the public officials reached an agreement that brought the work stoppage to an end. The Committee observes that the Government stresses the illegality of the strike in the health sector, the considerable damage caused and the refusal by the strikers to negotiate minimum services, but it observes that the Government does not refer in a sufficiently specific manner to the criminal proceedings brought against the 11 trade union officials mentioned (Roberto Checa, Ana Herrera, Marlene Cartagena, José Ortiz, Gloria Correa, Wilson Salguero, Lenín Villalba, Bolívar Cruz Vasquez, Judich Chuquer, Angel López and Adolfo Nieto) but simply makes observations concerning proceedings in general. The Committee therefore requests the Government to indicate whether the 11 trade union officials of the IESS mentioned by the ICFTU have had criminal proceedings brought against them and, if so, to communicate the charges and specific facts of which they have been accused. The Committee also asks the Government to send any decisions or rulings that have been handed down in this respect. The Committee observes, furthermore, that according to press cuttings provided by the Government, once the agreement was concluded with the public officials, this was done with the offer that there would be no type of reprisals against the leaders of the work stoppage.
7. 414. Lastly, the Committee once again requests the Government to send its observations concerning the allegations relating to the Hotel Chalet Suisse.

The Committee's recommendations

1. 415. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to send the report by the labour inspectorate concerning the alleged pressure by the COSMAG company for workers to renounce union membership, thus preventing the registration of the trade union owing to it not having the legal minimum number of members.
   • (b) The Committee requests the Government to send the up-to-date text of the Promotion of Investment and Citizen Participation Act.
   • (c) As concerns the allegations objecting to article 94 of the Economic Transformation Act which provides for the “standardization of salaries”, the Committee requests the complainant organizations to indicate specifically the manner in which the application of this provision violates trade union rights. The Committee also requests the Government to communicate its position in this respect in greater detail.
   • (d) The Committee once again requests the Government to send its observations concerning the allegations relating to the Hotel Chalet Suisse.
   • (e) The Committee requests the Government to indicate whether the 11 trade union officials of the IESS (Roberto Checa, Ana Herrera, Marlene Cartagena, José Ortiz, Gloria Correa, Wilson Salguero, Lenín Villalba, Bolívar Cruz Vasquez, Judich Chuquer, Angel López and Adolfo Nieto) have had criminal proceedings brought against them and, if so, to communicate the charges and specific facts of which they have been accused. The Committee also requests the Government to send it any decisions or rulings that have been handed down in this respect.