Interim Report - Report No 367, March 2013

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. 735. The Committee last examined this case at its March 2012 meeting, when it submitted an interim report to the Governing Body [see 363rd Report, approved by the Governing Body at its 313th Session (2012), paras 540–573].
2. 736. At its November 2012 meeting [see 365th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1971), it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, the Government has not sent any information.
3. 737. 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. 738. In its previous examination of the case in March 2012, the Committee made the following recommendations [see 363rd Report, para. 573]:
   • (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.

B. The Committee’s conclusions

1. 739. The Committee deeply deplores the fact that, despite the time that has elapsed since the presentation of the complaint, the Government has not replied to the complainant’s allegations, even though it has been requested several times, including through an urgent appeal, to present its comments and observations on this case.
2. 740. Hence, in accordance with the applicable procedural rules [see 127th Report, para. 17, approved by the Governing Body at its 184th Session (1971)], the Committee is obliged to present a report on the substance of the case without being able to take account of the information which it had hoped to receive from the Government.
3. 741. The Committee reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to ensure respect for trade union rights in law and in practice. The Committee is confident that, while this procedure protects governments against unreasonable accusations, they must recognize the importance of formulating, for objective examination, detailed replies concerning allegations brought against them [see First Report of the Committee, para. 31].
4. 742. The Committee observes with particular concern that, despite the time that has elapsed and the successive appeals from the Committee, the Government has not sent any observations in response to the allegations of mass dismissals at the E.P. PETROECUADOR and Unidad Eléctrica de Guayaquil enterprises.
5. 743. Moreover, the Committee also notes that the question of observance of collective agreements in the public sector continues to be a source of difficulties, as reflected in new complaints to the Committee. In this regard the Committee draws the Government’s attention to the conclusions contained in Case No. 2926.
6. 744. The Committee is bound to reiterate its previous recommendations and, in view of the relevance of this case, firmly urges the Government to provide the requested information without delay.

The Committee’s recommendations

1. 745. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee again 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 again 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 regards 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 again requests the Government to encourage the initiation of discussions between FETRAPEC and the enterprise with a view to reinstatement of these union officials.
   • (c) As regards the alleged mass dismissals that took place at the E.P. PETROECUADOR enterprise in 2009 and 2010, the Committee urges the Government to send without delay detailed information on these allegations and its observations on the alleged anti-union nature of the dismissals.
   • (d) As regards the alleged violation of the collective agreement in force regarding compensation owed to workers who voluntarily ended their employment at the abovementioned enterprise, the Committee, without calling into question the statute of limitations that applies to the judicial proceedings referred to by the Government, highlights the importance of the issues raised and again requests the Government to promote dialogue between the Confederation of Workers of Ecuador (CTE) and the enterprise with a view to finding a solution to this dispute.
   • (e) As regards the alleged dismissals at the Unidad Eléctrica de Guayaquil enterprise 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.
   • (f) The Committee again requests the Government to annul Ministerial Orders Nos 00080 and 00155A and their effects, since they seriously violate the principle of free and voluntary collective bargaining established by Convention No. 98, and to indicate whether Constituent Resolution No. 008 is compatible with an exclusively judicial control of the possibly abusive nature of certain clauses of collective agreements in the public sector. The Committee again requests the Government to continue to promote dialogue with the representative trade union organizations and to keep it informed of developments, particularly as regards meetings with the union representatives and the work of the National Labour Council (CNT).