Interim Report - Report No 363, March 2012

Case No 2684 (Ecuador) - Complaint date: 17-NOV-08 - Follow-up

Allegations: Legislation contrary to trade union independence and the right to collective bargaining; dismissals of trade unionists

1. 540. The Committee last examined this case at its June 2009 meeting [see 354th Report, approved by the Governing Body at its 305th Session, paras 726–840].
2. 541. The United Workers’ Front (FUT), the Ecuadorian Confederation of Free Trade Union Organizations (CEOSL), the Confederation of Workers of Ecuador (CTE), the Ecuadorian Confederation of United Workers’ Organizations (CEDOCUT), the organizations of the National Coordinating Body of Public Trade Unions of Ecuador and the National Federation of Workers of the State Petroleum Enterprise of Ecuador (FETRAPEC) sent additional information in communications dated 20 and 21 May, 2 June, 21 August and 11 December 2009, and 19 and 25 May and 1 June 2010.
3. 542. The Government sent its observations in communications dated 16 June and 11 December 2009 and 13 October 2010.
4. 543. The technical cooperation mission carried out in the framework of the present case took place from 15–18 February 2011.
5. 544. 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. 545. At its last meeting, the Committee made the following recommendations [see 354th Report, para. 840]:
   • (a) The Committee requests the complainant organization FETRAPEC to confirm the status of trade union official of the signatories of the complaint, including the four dismissed persons, for example, by sending the minutes of the general meeting at which they were elected by their trade union organization, grass-roots union or federation. In turn, the Committee requests the Government to indicate: (1) whether the consideration that the four dismissed persons were not trade union officials was related to their dismissal, which might have made them lose that status under Ecuadorian legislation; and (2) the specific facts which motivated the dismissal of those four persons, as it would appear from the Government’s reply that they were dismissed unilaterally and without any indication of the grounds. The Committee also requests the Government to communicate the sanctions set out in the legislation in the case of arbitrary and unjustified dismissals of trade unionists.
   • (b) The Committee requests the Government and the authorities competent for issuing labour legislation to hold in-depth consultations in advance and allowing sufficient time with the workers’ and employers’ organizations concerned in order, as far as possible, to reach shared solutions.
   • (c) The Committee observes that Constituent Resolutions Nos 002, 004 and Executive Decree No. 1406 set a permanent cap on remuneration in the public sector, compensation for termination of the employment relation and prohibit supplementary private pension schemes which involve contributions of State resources. To the extent that these are permanent limitations on collective bargaining, the Committee requests the Government to restore the right of collective bargaining on conditions of work and living standards of workers and to inform it accordingly.
   • (d) As regards the imposition of the revision of clauses of public sector collective agreements by administrative means (declaration of nullity or amendment) which contain excesses and unreasonable privileges (Constituent Resolution No. 008) by unilateral decision of a commission (Ministerial Order No. 00080 and Order No. 00155A) the Committee emphasizes that control of allegedly abusive clauses of collective agreements should not be up to the administrative authority (which in the public sector is both judge and party), but the judicial authority, and then only in extremely serious cases. Therefore, the Committee requests the Government to annul those ministerial texts and their effects since they seriously violate the principle of free and voluntary collective bargaining consecrated in Convention No. 98, and to indicate whether Constituent Resolution No. 008 is compatible with exclusively judicial control of the possible abusive character of certain clauses of collective agreements in the public sector. The Committee requests the competent authorities that, if it is wished to amend the result of collective bargaining in the public sector, they should wait until the expiry of the collective agreements and the respective employers should renegotiate their content with the trade union organizations.
   • (e) The Committee requests the Government to take steps to ensure that the collective agreements, which were revised by administrative process, are renegotiated if the trade union organizations confirm the wish to do so.
   • (f) The Committee requests the Government to keep it informed of measures taken to give effect to the various recommendations formulated in this report and, noting the request of the complainant organizations, invites the Government to accept an ILO mission to assist in solving the problems observed in this case.
   • (g) The Committee requests the Government to send its observations on the communications from the CEOSL dated 16 March and 20 May 2009.

B. Additional information from the complainant organizations

1. 546. In communications dated 21 May and 2 June 2009, the FUT, the CEOSL, the CTE and the CEDOCUT confirm that the right to organize and collective bargaining of public sector workers has been restricted. The “Constituent Resolutions”, sui generis instruments not subject to the rules for the formation of a law, contain provisions which expressly establish that these bodies of law shall not be “open to complaint, challenge, action for protection (amparo), demand, claim, administrative or judicial opinion or judgement whatsoever”. There is no acceptable legal basis for this statement, which leaves workers whose rights have been expressly violated totally defenceless. The Constituent Assembly received a mandate from the people to prepare a new Constitution and change the country’s institutional framework. The Assembly exceeded the powers bestowed upon it by the people when it issued those Constituent Resolutions, which through dictatorial action could become immutable instruments by virtue of the fact that they do not exist in the Ecuadorian legal system. In Constituent Resolution No. 002, the public authority, which is also the employer, unilaterally imposes the amendment and deletion of clauses or articles contained in collective agreements and contracts that have been negotiated and legally concluded, ignoring the principle of collective autonomy. Constituent Resolution No. 004 goes even further, expressly affirming that compensation for unfair dismissal set out in legally concluded collective agreements is also referred to. Constituent Resolution No. 008 provides that for the sake of fairness in work, it is necessary to revise and regulate the clauses of unreasonable and excessive collective agreements concluded by minority groups which run counter to the general interest and the workers themselves.
2. 547. The complainant organizations reiterate that, if, hypothetically speaking, there were “excesses or privileges”, these must be amended in accordance with practice based on the Constitution, the international agreements and the Labour Code, i.e. through collective bargaining, but in no way through the arbitrary intervention of and imposition by the Government. The Constituent Resolutions remained in force until the approval of the new Constitution on 20 October 2008 and all the regulations and standards issued by the executive authority and the Ministry of Labour and Employment (now the Ministry of Labour Relations) had to be coherent and in harmony with the provisions of the Constitution. Moreover, the Constitution and the ratified international human rights treaties prevail over any other legal standard or act of the public authorities. No provision is made in the legal hierarchy for the so-called “Constituent Resolutions” and any standards, precepts or provisions of the public authority that are contrary to the principles of the Constitution can be challenged before the Constitutional Court. The complainant organizations state that the new Constitution contains a tacit derogation of the Constituent Resolutions given that the derogating provision of the Constitution establishes that “any standard contrary to this Constitution ... shall be derogated. The rest of the legal order shall remain in force on the condition that it is not contrary to the Constitution.” Both the implementing regulation of Constituent Resolution No. 008, issued by the President of the Republic on 5 June 2008, and Ministerial Order No. 00080 issued by the Ministry of Labour and Employment, which refer to the revision of collective agreements in the public sector and the regulations covering the automatic adjustment and revision of the clauses of collective agreements are clearly contrary to the standards of the new Constitution and should therefore not be applied. However, the Government has arbitrarily and unilaterally revised collective agreements in the public sector.
3. 548. The complainant organizations added that they opposed and protested against this arbitrary imposition by the Government. A number of officials left the meetings to which they had been convened as silent observers. Furthermore, in an effort to eliminate for good the most important rights of the workers set out in the collective agreements, on 30 April 2009, the President of the Republic issued Executive Decree No. 1701 stating that clauses contained in collective agreements which, in the President’s view, contain “unreasonable privileges and benefits” should be deleted and prohibited. This Decree is unconstitutional and void because it was not issued within the time period set out by Constituent Resolution No. 008, i.e. one year from 30 March 2008, the date on which the abovementioned Resolution was issued, and there was no social dialogue process. If the legal provisions and government practices described above remain in force, workers will no longer be able to achieve progress through the conclusion of collective agreements, the public authority will impose its will on trade union organizations and all of the rights and principles won during the course of the workers’ struggle will be reduced to the level of frustrated demands.
4. 549. Moreover, in a communication dated 20 May 2009, the organizations of the National Coordinating Body of Public Trade Unions of Ecuador state that this situation puts the validity of collective bargaining, the right to work, employment stability and the existence of the right to organize in the public sector at risk, setting a dangerous precedent for organizations of the workers in the private sector. The Coordinating Body calls on the Government to open tripartite social dialogue, the appropriate mechanism for the resolution of differences and issues.
5. 550. In a communication dated 21 August 2009, FETRAPEC confirms the status of trade union official of the signatories of the complaint, including the four dismissed persons, providing certified copies of the records of the boards of the Federation and the work councils. The Federation adds that Executive Decree No. 1701 of 30 April 2009 reduces the conclusion of collective agreements in the public sector to a minimum. The preamble of the Decree refers to the fourth transitional provision of Constituent Resolution No. 008, which states the following: “The executive authority, in the course of social dialogue, within a period of one year, shall establish the criteria governing the conclusion of collective labour agreements in all public sector institutions ... .” FETRAPEC states that there was no social dialogue, least of all with the workers of the public sector covered by the process of the conclusion of collective agreements.
6. 551. FETRAPEC highlights that the abovementioned Decree contains restrictions on trade union leave and eliminates employer contributions required for the conclusion of health insurance contracts. Public bodies are obliged to submit lists of personnel, stating staff members’ responsibilities and activities, to the National Technical Secretariat for Human Resources Development and Public Sector Remuneration (SENRES). Furthermore, according to the Decree, the Secretariat “shall proceed to determine which workers shall be subject to the Labour Code or to the conclusion of collective agreements, as the case may be”. SENRES also has the power to establish the amounts of compensation paid to those opting for voluntary cessation of service with a view to retirement. FETRAPEC states that the process of determining whether workers shall be subject to the Labour Code or to the conclusion of collective agreements (as referred to above) carried out by SENRES serves two purposes: (1) the redefinition and downgrading of the worker’s status, through the claim that the tasks that he carries out are purely or mainly manual rather than intellectual; (2) the redefinition of the employment relationship which occurs when a physical person continuously provides services for a public or private employer in a relationship of dependency or subordination and for remuneration. In the petroleum sector workers carry out tasks in both the administrative and operational sectors. Owing to the evolution of technology, there are technicians working in both sectors whose employment relationships are governed by the principle of reality, from both a factual and a legal point of view . Moreover, FETRAPEC states that the aim is to interfere in trade union affairs by altering the statute of workers is to ensure that they continue to be covered by the Organic Law on the Civil Service and Administrative Careers (LOSCCA) (now the Organic Law on the Civil Service (LOSEP)), which makes no provision for either collective bargaining or the right to strike. The complainant organization states that, far from restoring the right to collective bargaining, the Government is on the verge of eliminating it.
7. 552. As to the Constituent Resolutions, described as being supra-constitutional and incontestable, FETRAPEC states that the fact that the Assembly’s powers are incontestable does not mean that the Resolutions are above the Constitution and points out that Constituent Resolutions and sublegal standards detrimental to the conclusion of collective agreements remain in force. FETRAPEC recalls that the right to work, the freedom of association and the conclusion of collective agreements are guaranteed human rights under various international instruments ratified by Ecuador and that Ecuador is failing to comply with the international treaties to which it is a signatory.
8. 553. In a communication dated 1 June 2010, the FUT, the CEOSL, the CTE and the CEDOCUT added that, as a result of pressure brought to bear by organized workers during six months of dialogue with the Ministry of Labour, the Ministry of Policy and the executive authority, a number of small changes were conceded, such as the right to organize and to conclude collective agreements. Moreover, on 18 January 2010, the President of the Republic issued Executive Decree No. 225 amending Executive Decree No. 1701, which incorporates the parameters for the classification of public sector servants and workers and in which certain benefits and bonuses included in collective agreements which were eliminated as a result of the revision carried out by the Ministry of Labour Relations are restored to the workers. Furthermore, the obligation on the part of the employers and the labour authorities to maintain in force, unaltered and without any restrictions the clauses or articles of the collective agreements not covered by the prohibitions or deletions in question was reintroduced.
9. 554. However, the complainant organizations state that, in issuing Ministerial Order No. 00080 of 30 April 2010, the Ministry of Labour Relations committed another illegal act by establishing ceilings for collective bargaining in an irregular and discriminatory fashion, thus distorting the intention of Executive Decree No. 225 to respect the will of the parties.
10. 555. In a communication dated 11 December 2009, FETRAPEC states that, on 27 November 2009, around 300 workers of the state enterprise Petróleos de Ecuador were notified of their dismissal without any explanation whatsoever being given. These dismissals do not respond to the need to restructure the enterprise because official approval (visto bueno) for dismissals is usually sought in such cases.
11. 556. In a communication dated 19 May 2010, the CTE states that it supports the workers (retirees and non-retirees) in their move to denounce the enterprise PETROINDUSTRIAL, a public sector enterprise which belongs to the Ecuadorian State Petroleum Company (E.P. PETROECUADOR) system. The CTE denounces the violation of the collective agreement in force and demands the payment of the compensation owed to the workers. Following the voluntary separation of the workers, either through early retirement or cessation of the employment relationship, the enterprise failed to comply with section 185(2) of the Labour Code, which expressly states that enterprises shall pay the compensation due to the worker, within a non-extendable time period of 15 days, from the legal notification of the request for cessation of the employment relationship and shall settle the amount of the bonuses owed to the worker. After a year or more of waiting to be compensated, the workers initiated a legal action against their former employer who, having agreed to pay them for cessation of employment relationship on a pro-rata basis and to pension them off, never carried out in a rational way the payment of the bonuses and compensation corresponding to voluntary separation and retirement within the time period set out in law and in the collective agreement. The labour complaints were lodged and brought before the labour judges and, once all of the procedural rules had been complied with, the presiding and appeal judges rejected the said complaints on the legal pretext that “the time granted under labour legislation to workers (three years) to lodge legal claims against their employers, had expired”. It should be pointed out that no examination was ever carried out of the evidence which showed that, owing to the fact that the defendant enterprise had recognized the existence of the debt through partial dismissal payments, the time period in which the workers could bring an action claiming compensation was suspended and interrupted for up to five years from the moment the employment relationships were terminated. The workers lodged appeals with the Supreme Court, which rejected them stating that “there was no evidence proving the existence of any facts involving the interruption of the deadline and the suspension of the time period”. The CTE states that many of the workers, who were affected by pollution generated as a part of the petroleum refining process, died without receiving compensation. Extraordinary actions for protection were then lodged with the Constitutional Court but were declared inadmissible by the Chamber of Admissions of that court. The workers are claiming the compensation due to them (US$200 million), as well as compensation for damages caused.
12. 557. The CTE adds, in a communication dated 25 May 2010, that 22 workers of the enterprise Unidad Eléctrica de Guayaquil were dismissed simply for demanding that the collective agreement in force be complied with. The workers were dismissed in compliance with section 172 of the Labour Code even though they had not committed any of the faults listed in the indents of the abovementioned section (the only way that an employer can request visto bueno for the dismissal of a worker). The enterprise also brought criminal proceedings against the workers, whom it accuses of being terrorists for demanding proper treatment in accordance with their contracts, thus violating specific provisions of the guarantees, ignoring the fact that work is a right and a social duty and that the State is obliged to guarantee work in accordance with the Constitution. The CTE highlights that the mass dismissals demonstrate that in terms of labour issues there are no fundamental guarantees in place, nor is there any respect for labour rights, giving rise to disputes in terms of worker–employer relations and socio-economic hardship for the families of the dismissed workers, who have yet to be reinstated despite the undertakings made by the State to that effect.

C. The Government’s reply

1. 558. In a communication dated 16 June 2009, the Government reiterates the information previously provided and summarizes the outcome of the process of revision of the collective agreement concluded between OSUNTRAMSA and the Ministry of Public Health, an administrative act which took place on 4 and 5 November 2008 with the full participation of the representatives of the workers. Therefore, it has been both demonstrated and proven that the trade union officials, by attending and participating in this act and agreeing in consensus to the Resolutions that clear up a number of their concerns with regard to the revision of their collective agreement, have recognized that this process is completely valid. Furthermore, within the framework of an action for constitutional protection lodged against the chairperson of the committee revising said collective agreement by the Single Trade Union of Workers of Eugenio Espejo Hospital, the constitutional judge stated that the bringer of the action sought recognition for rights expressly prohibited by the Constitution itself and the Resolutions and therefore rejected the action for constitutional protection. Within the framework of the appeal proceedings, the court decided to confirm this decision, since the administrative act of revision does not violate the fundamental rights of the workers given that it simply ensues from the issuance of Constituent Resolution No. 008 and its implementing regulations.
2. 559. In a communication dated 11 December 2009, the Government states, with regard to the dialogue processes requested by the Committee, that in conjunction with the Ministry of Labour Relations and the Ministry for the Coordination of Policy, meetings had been held with the representatives of the trade union centrals (CTE, CEOSL, CEDOCUT and the General Union of Ecuadorian Workers (UGTE), united under the banner of the FUT) with the aim of reforming Executive Decree No. 1701, an issue with regard to which several agreements already exist. The Government reiterates that the purpose of the revision of collective labour agreements in the public sector was to eliminate the excesses and privileges in terms of wages and salaries, removing the distortions generated by the existence of differentiated wages paid in certain state bodies which had been distorted for many years. Moreover, the Constituent Assembly tackled this issue in a harmonious way and in accordance with the Government’s policies and principles. The Government states that, although a right of the workers, the conclusion of collective agreements must not give rise to privileges and abuses concerning the payment of compensation for any form of cessation of employment relationship which undermine the equality of citizens before the law and compromise the public financial resources of the State. The setting of limits and general regulations with regard to the payment of compensation for any form of cessation of employment relationships, included in collective agreements, contracts, settlements and any agreement in the public sector, be they financial or otherwise, shall not represent an attempt to weaken the right to conclude collective agreements.
3. 560. In a communication dated 13 October 2010, the Government reiterates that through a national popular referendum of 15 April 2007 the people approved the convocation of the Constituent Assembly, which assumed the constituent power, invested with full powers, and exercised it by the issue of laws, decisions and resolutions. Officials and public servants are under a moral and legal obligation to comply with decisions adopted by the Constituent Assembly. The provisions of both Constituent Resolution No. 008 and the regulations in application clearly and unambiguously establish that the list of clauses which are considered to contain excesses and privileges is only indicative and not exhaustive. The clauses singled out, as examples, by the Constituent Assembly itself and the President of the Republic as being void in law serve as guidelines which must be followed in the process of revision to determine other clauses which also contain excesses and privileges and are contrary to the general interest and which must also be declared void in law. The Government states that excesses regarding collective agreements have been uncovered, mainly in the oil sector.

D. The Committee’s conclusions

1. 561. The Committee notes that the issues pending in the present case include the dismissal of four trade union leaders of FETRAPEC, the need to restore social dialogue and collective bargaining in the public sector, the renegotiation of collective agreements (in particular the agreement signed by OSUNTRAMSA) and the need to repeal Ministerial Orders Nos 00080 and 00155A. Moreover, the Committee notes with interest that the Government agreed to the visit of a technical cooperation mission (which took place from 15–18 February 2011), giving effect to one of the recommendations of the Committee.
2. 562. The Committee notes that the complainant organizations reiterate that: (1) the rights of workers in the public sector to organize and collective bargaining have been restricted; (2) the Constituent Resolutions, considered to be prejudicial because they impose drastic limits on collective bargaining, are not open to challenge, leaving the workers defenceless, and the Constituent Assembly exceeded the powers bestowed upon it by the people when it issued those Resolutions; (3) amendments to the freely concluded collective agreements should only be carried out through collective bargaining; and (4) Executive Decree No. 225, amending certain provisions of Executive Decree No. 1701, introduced a number of improvements. The Committee also notes that, in new allegations, FETRAPEC and the CTE allege mass dismissals, violation of the collective agreement by the enterprise PETROINDUSTRIAL and the refusal by the Government to compensate workers in an adequate manner.
3. 563. The Committee notes that the Government states that the collective agreement signed with OSUNTRAMSA has been revised and that it has been demonstrated and proven that the trade union officials, by attending and participating in this act and agreeing in consensus to the resolutions that clear up a number of their concerns with regard to the revision of their collective agreement, have recognized that this process is completely valid.
4. 564. As to the dismissal of the four trade union officials (Mr Edgar de la Cueva, Chairman of the National Enterprise Committee of Petroproducción Workers (CENAPRO); Mr Ramiro Guerrero, Chairman of the National Enterprise Committee of Petrocomercial Workers (CENAPECO); Mr John Plaza Garay, General-Secretary of the Single Enterprise Committee of Workers of Petroecuador (CETAPE) and Mr Diego Cano Molestina, President of FETRAPEC)), the Committee observes that the complainant organization has confirmed the status of trade union official of the signatories of the complaint, sending the minutes of the general meeting at which they were elected by their trade union organizations. The Committee observes that, according to the mission report, the Government stated that following the change in the statute of the State enterprise Petróleos del Ecuador, FETRAPEC had requested that its statutes be reformed in order to allow it to represent the workers of the new public enterprise E.P. PETROECUADOR, a request that was rejected by the authorities. The Government indicated that, owing to the fact that E.P.PETROECUADOR was a new enterprise rather than the result of a merger of the four subsidiaries that made up the old enterprise, it considered FETRAPEC to be defunct as a trade union body. The Government stated that new elections should be held to form a comité de empresa (the national term for majority union) and highlighted that, in accordance with the law, there is only one comité de empresa in each public enterprise. The Government stated that to date FETRAPEC had not initiated procedures concerning the holding of the proposed elections. The Committee recalls that in the light of Convention No. 87, organizations of workers can only be dissolved voluntarily or through judicial channels and that, consequently, the Government and the employer enterprise cannot consider FETRAPEC to be dissolved as a result of the change of statute of the public enterprise. Moreover, the Committee observes that according to the mission report, although the Government and the enterprise do not recognize FETRAPEC, trade union dues continue to be deducted from the wages of the workers affiliated to the abovementioned trade union organization. FETRAPEC stated that the dues were being held by the Ministry of Labour Relations. The Committee also notes that, according to the mission report, the Ministry of Labour Relations transferred the trade union dues to the enterprise. The Committee highlights that trade union dues do not belong to the authorities, nor are they public funds, but rather they are an amount on deposit that the authorities may not use for any reason other than to remit them to the organization concerned without delay [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 479]. The Committee requests the Government to take the necessary steps to ensure that the trade union dues are immediately returned to the workers and to keep it informed in that regard. Moreover, the Committee understands that the workers affiliated to FETRAPEC continue to work for the newly-created enterprise E.P. PETROECUADOR. The Committee requests the Government to encourage the initiation of discussions between FETRAPEC and the enterprise with a view to recognition of the trade union organization. Finally, the Committee highlights that one of the fundamental principles of freedom of association is that the workers shall enjoy adequate protection against acts of anti-union discrimination relating to their jobs, in particular trade union officials. Taking note of the fact that the Government has not provided information on the dismissal of Mr Edgar de la Cueva, Mr Ramiro Guerrero, Mr John Plaza Garay and Mr Diego Cano Molestina, the Committee requests the Government to encourage without delay the initiation of discussions between FETRAPEC and the enterprise with a view to the reinstatement of the abovementioned trade union officials.
5. 565. As to Constituent Resolutions Nos 002, 004 and 008 and the restoration of the right to collective bargaining (in particular with regard to wages in the public sector and compensation for cessation of employment relationship), the Committee notes that, according to the complainant organizations, the abovementioned standards drastically limit collective bargaining in the public sector. However, the Committee notes that, according to the mission report, the trade union organizations (OSUNTRAMSA and CEOSL) highlighted that they were not calling into question the provisions of the abovementioned Constituent Resolutions but rather the provisions promulgated as a consequence of those Resolutions (Ministerial Orders Nos 00080 and 00155A). They indicated that their collective agreements in the public sector were rendered devoid of any of the rights that they had acquired and that the legal provisions were not respected given that there was no real bargaining process concerning the collective agreements but rather the ministerial authorities unilaterally imposed a series of amendments to the collective agreements. The Committee observes that the complainant organizations confirmed that Executive Decree No. 225, amending Executive Decree No. 1701, improved the situation although this did not mean that the rights lost as a result of the imposition of amendments to the collective agreements had been recovered.
6. 566. The Committee notes that, for its part, the Government reiterates the information provided at the time of the previous examination of the case. The Committee also notes that, according to the mission report, the Government insists that Constituent Resolutions Nos 002, 004 and 008 and Ministerial Orders Nos 00080 and 00155A, as amended by Executive Decree No. 225, were issued with the aim of regulating the excesses (referred to at the time of the previous examination of the case) which arose from the clauses of the collective agreements (in particular the collective agreement concluded by FETRAPEC with the enterprise E.P. PETROECUADOR). In its latest reply, the Government states that the establishment of limits and general regulations concerning the payment of compensation for any form of cessation of employment relationship included in collective agreements, contracts, settlements and any agreement in the public sector, be they financial or otherwise, shall not represent an attempt to weaken the right to conclude collective agreements and that public employees and servants have a moral and legal obligation to comply with the decisions adopted by the Constituent Assembly. The Government informed the ILO mission that, despite the fact that they enjoy legitimacy given that they were promulgated following a number of referendums in which a high percentage of the population voted in favour of their introduction, the Constituent Resolutions are supra-constitutional standards which, in the light of the provisions of Constituent Resolution No. 023, can be amended through the channel envisaged for the adoption of ordinary laws.
7. 567. In these circumstances, the Committee recalls its previous recommendations and requests the Government to annul the abovementioned Ministerial Orders and their effects given that they seriously violate the principle of free and voluntary collective bargaining enshrined in Convention No. 98. The Committee also requests the Government to state whether Constituent Resolution No. 008 is compatible with an exclusively judicial control of the possibly abusive character of certain clauses of collective agreements in the public sector.
8. 568. As to the in-depth consultations requested with a view, as far as possible, to finding shared solutions to legislative issues, the Committee notes that both the complainant organizations and the Government state that the Ministry of Labour Relations has held meetings with the representatives of the trade union centrals in order to set criteria governing the conclusion of collective agreements in the public sector which are defined in Executive Decree No. 225 of 18 January 2010. Moreover, the Committee observes that, according to the mission report, following two years of inactivity, on 15 January 2011, the National Labour Council (CNT) met at the request of the social partners to discuss the ongoing labour reform process and to encourage social dialogue. The Committee considers that the CNT could provide an appropriate forum for the promotion of social dialogue and the conclusion of tripartite agreements with a view to producing the legislative changes that would bring national legislation into line with the principles and requirements of the ratified Conventions. The Committee requests the Government to continue to encourage dialogue with the representative trade union organizations and to keep it informed of developments, in particular with regard to the meetings with the trade union representatives and the work of the CNT. The Committee also reiterates its previous conclusions and requests the Government once again to take the necessary measures to annul or amend the abovementioned Ministerial Orders and to keep it informed in that regard.
9. 569. As to the renegotiation of the collective agreements, the Committee notes that the Government summarizes the outcome of the process of revision of the collective agreement concluded between OSUNTRAMSA and the Ministry of Public Health, an administrative act which took place on 4 and 5 November 2008 with the full participation of the representatives of the workers. Moreover, according to the mission report, OSUNTRAMSA confirms that in the wake of the reformulation of the collective agreement by the Ministry of Employment Relations a new collective agreement was concluded with the Ministry of Health.
10. 570. The Committee notes that FETRAPEC alleges that, on 27 November 2009, around 300 workers of the state enterprise Petróleos de Ecuador were notified of their dismissal without any explanation whatsoever being given. These dismissals do not respond to the need to restructure the enterprise because visto bueno for dismissals normally sought in such cases. Furthermore, the Committee observes that, according to the mission report, the representatives of the trade union organization highlighted that the situation had worsened. In September 2010, more than 500 workers of the newly-created public enterprise (E.P. PETROECUADOR) were dismissed on the basis of visto bueno which allows for employment relationships to be terminated without compensation being paid to workers. The Committee notes that, according to the mission report, the enterprise’s court representative and assistant court representative stated that they did not have any information on the workers affiliated to FETRAPEC or on any possible dismissals because they had only recently taken up their posts. The Committee requests the Government to send without delay detailed information on these allegations and its observations concerning the alleged anti-union nature of the dismissals.
11. 571. The Committee also takes note of the information provided by the CTE according to which the workers of the enterprise PETROINDUSTRIAL, a public sector enterprise which is a part of the E.P. PETROECUADOR, denounce the violation of the collective agreement in force and demand payment of the compensation due to them. The Committee notes that, according to the CTE, following the voluntary separation of the workers, either through early retirement or cessation of the employment relationship, the enterprise failed to comply with section 185(2) of the Labour Code, which expressly states that enterprises shall pay the compensation due to the worker, within a non-extendable time period of 15 days as of the legal notification of the request for cessation of the employment relationship and shall settle the amount of the bonuses owed to the worker. The Committee notes in particular that: (1) the workers decided to bring a claim against their former employer; (2) the employer enterprise agreed to pay them for the cessation of employment relationship on a pro-rata basis and to pension them off, although the enterprise never carried out in a rational way the payment of the bonuses and compensation corresponding to voluntary separation and retirement within the time period provided for by law and in the collective agreement; (3) the claims were rejected in the first and second instances given that “the time granted under labour legislation to workers (three years) to lodge legal claims against their employers, had expired”; (4) the Supreme Court rejected the appeal, stating that “there was no evidence proving the existence of any facts involving the interruption of the deadline and the suspension of the statute of limitation”; (5) the workers then turned to the Constitutional Court, lodging extraordinary actions for protection which were declared inadmissible by the Chamber of Admissions of that court. Without putting into question the deadlines mentioned by the Government, or the statute of limitations, the Committee highlights the importance of the issues raised and requests the Government to promote dialogue between the CTE and the enterprise with a view to finding a solution to this dispute.
12. 572. The Committee also notes that the CTE alleges that 22 workers of the enterprise Unidad Eléctrica de Guayaquil were dismissed simply for demanding that the collective agreement in force be complied with and that the enterprise brought criminal proceedings against the workers, who it deems to be terrorists. The Committee notes that the CTE states that the State undertook to reinstate the dismissed workers but has not to date done so. The Committee deeply regrets that the Government has not responded to these allegations and urges it to do so without delay.

The Committee’s recommendations

1. 573. 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 take the necessary measures to ensure that the trade union dues are immediately returned to the workers affiliated to FETRAPEC and to keep it informed in that regard. Moreover, the Committee requests the Government to encourage without delay the initiation of discussions between FETRAPEC and the enterprise with a view to recognition of the trade union organization.
   • (b) As to the dismissal of the four trade union officials (Mr Edgar de la Cueva, Mr Ramiro Guerrero, Mr John Plaza Garay and Mr Diego Cano Molestina), the Committee requests the Government to encourage the initiation of discussions between FETRAPEC and the enterprise with a view to reinstatement of these union officials. The Committee considers that, as a representative organization, FETRAPEC has a legitimate right to exist and represent its members. However, the Committee also considers that the statutes of this organization should take into account the existence of a new public enterprise and that said organization should hold trade union elections given that the four former subsidiaries no longer exist. Finally, the Committee requests the Government to take the necessary measures to ensure that the trade union dues are immediately returned to the workers and to keep it informed in that regard.
   • (c) The Committee requests the Government once again to annul the abovementioned Ministerial Orders and their effects, since they seriously violate the principle of free and voluntary collective bargaining enshrined in Convention No. 98, and to indicate whether Constituent Resolution No. 008 is compatible with an exclusively judicial control of the possibly abusive character of certain clauses of collective agreements in the public sector.
   • (d) The Committee requests the Government to continue to promote dialogue with the representative trade union organizations and to keep it informed of developments, in particular concerning the meetings with the trade union representatives and the work of the CNT. The Committee also reiterates its previous conclusions and requests the Government once again to take the necessary measures to annul or amend the abovementioned Ministerial Orders and to keep it informed in that regard.
   • (e) As to the alleged mass dismissals that took place in the enterprise E.P. PETROECUADOR in 2009 and 2010, the Committee requests the Government to send without delay detailed information on these allegations and its observations on the alleged anti-union nature of the dismissals.
   • (f) Without putting into question the deadlines mentioned by the Government, or the statute of limitations, the Committee highlights the importance of the issues raised – violation of the collective agreement in force and non-compliant compensation – and requests the Government to promote dialogue between the CTE and the enterprise with a view to finding a solution to this dispute.
   • (g) As to the alleged dismissals at the enterprise Unidad Eléctrica de Guayaquil and the ongoing criminal proceedings against the workers, the Committee deeply regrets that the Government has not responded and urges it to do so without delay.