Rapport définitif - Rapport No. 73, 1964

Cas no 316 (Equateur) - Date de la plainte: 19-NOV. -62 - Clos

1. 84. The original complaint submitted on 19 November 1962 by the Ecuadorian Confederation of Catholic Workers, Employees and Craftsmen (C.E.D.O.C.) was forwarded to the Government for its observations by a letter of the Director-General dated 7 December 1962. On 14 January 1963 the complainants submitted a series of additional particulars, of which the Government was notified by a letter of 29 January 1963. Further information was submitted by the complainants in two communications dated 3 and 14 October 1963, which the Committee has regarded as non-receivable under the procedure, because, apart from the lateness of their submission, the communications did not add any important new elements of substance to those contained in the original complaint.
2. 85. The Committee considered the case at its 33rd Session (February 1963) and at its 34th Session (May 1963). In the absence of the information requested from the Government the Committee decided to postpone consideration of the case until its next session. The Government sent its comments by a letter of 1 July 1963.
3. 86. Ecuador has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 87. In their communication of 19 November 1962 the complainants state that the by-laws of the Works Council set up by workers belonging to C.E.D.O.C in the State Railways were submitted for approval to the Ministry of Social Welfare and Labour on 13 August 1962. For this purpose 1,587 signatures had been collected from workers in the undertaking, which has a total labour force of 3,030 workers. The requirements of section 423 of the Labour Code had therefore been complied with. The Ministry refused to give its approval to the by-laws in accordance with section 410 of the Labour Code. This resistance on the part of the Ministry continues in spite of the fact that the Chamber of Deputies sent out a committee of inquiry to check on the authenticity of the signatures in question. It is stated that the committee reached the conclusion that there was no reason to refuse to approve the by-laws of the Works Council.
2. 88. In a note dated 14 January 1963 the complainants sent in certain documents to supplement their original complaint. The documents sent in included a list of the workers on the State Railways, which was supplied by the book-keeping department of the undertaking and shows the number of wage earners and salaried employees as being 3,161 (the complainants maintain that the real figure, as shown in the budget estimates, is only 3,030); a copy of an affidavit by the Inspector of Labour from which it seems that 1,587 signatures of workers in the undertaking were lodged in support of the Works Council; original receipts for 164 additional signatures; a copy of the report of the committee of the Chamber of Deputies, stating that not a single forged signature had been discovered and giving figures concerning the railway personnel questions; affidavits by two leaders of unions affiliated to C.E.D.O.C who were members of a committee set up by the Ministry of Social Welfare and Labour to check the signatures of the workers supporting the Works Council (affidavits to the effect that the officials of the Ministry and representatives of the management had acted improperly and had engaged in discrimination); a memorandum from the leaders of the Works Council reporting what occurred during this inquiry and alleging that the inquiry served no useful purpose whatsoever; a copy of the by-laws of the Works Council; a copy of the Constitution of the Works Council signed by the delegates of local committees; and a copy of the decision of the President of the Republic refusing approval of the by-laws on the grounds that the Works Council does not have the support of a majority of the workers in the undertaking.
3. 89. In its reply dated 1 July 1963 the Government states that it has not been possible to approve the by-laws of the Works Council because the records submitted by the petitioners do not all have the same date, and because they have been tampered with and do not form a single whole. According to the Government this proves that "there was never a genuine constituent assembly, reflecting the unity of action which is an essential feature of a founders' meeting in the proper sense, from which a works council mainly springs". The Government also furnishes a report prepared by the Office of the Legal Adviser of the Ministry of Social Welfare and Labour. This report states that after an application had been made for approval of the by-laws so that the Works Council might acquire legal personality, the existing Ecuadorian Railwaymen's Union opposed approval of the by-laws and requested that a check be made to ascertain whether the Works Council had the support of a majority of the railway workers; that an inquiry be made to discover what local committees were represented by the persons who had notified the authorities of the holding of a national meeting to set up the Works Council; and that it should be ascertained whether local meetings had been held to appoint delegates to the national meeting and whether these persons had the appropriate credentials.
4. 90. It is stated in the report of the Office of the Legal Adviser that in view of this opposition a committee was formed consisting of officials of the Ministry, of the Works Council, of C.E.D.O.C and of the Railwaymen's Union. The committee travelled along the railway line, asking the workers to what trade union organisation (the Works Council or the Railwaymen's Union) they belonged. This committee ascertained that on a certain part of the line a majority of the workers claimed to belong to the Works Council, that another sector of the labour force was ignorant of the existence of the two trade union organisations, and that in a third sector where the main railway centres are located the great majority (95 per cent.) of the workers said they supported the Railwaymen's Union. The report also states that local meetings were not held to appoint the delegates who took part in the setting up of the Works Council. In any case 95 per cent of the railway workers had indicated that they were opposed to approval of the by-laws of the Works Council.
5. 91. With regard to the legal aspect of the question the report of the Office of the Legal Adviser states that under section 423 of the Labour Code a works council shall not be deemed to be duly constituted unless over 50 per cent of the workers in the undertaking attend the founders' meeting. In the present case the meeting was not attended by such a percentage of the workers, and those who attended as delegates were not appointed by local meetings; instead, the signatures submitted to show that more than half of the workers in the undertaking supported the Works Council had been collected over a space of two years. Consequently the statutory prerequisite had not been complied with.
6. 92. In short, the Committee notes from the information submitted to it that, in view of the opposition of the Railwaymen's Union to the approval of the by-laws of the Works Council, the Ministry of Social Welfare and Labour appointed a committee to check whether the Works Council enjoyed the support of a majority of the workers. The complainants contend that this is an illegal procedure and that in any case the government representatives and members of the management acted improperly by giving preference to the Railwaymen's Union and bringing pressure to bear on the workers in order to prevent its being proved that the Works Council had majority support. The outcome of the inquiry was that the President of the Republic refused to approve the by-laws on the grounds that the Works Council did not have the statutory majority. Referring to the reasons for refusing approval, the Government also states in its reply that the prerequisites laid down in the Code with regard to the meeting held to constitute the Works Council were not complied with.
7. 93. Section 423 of the Labour Code of Ecuador provides that a works council may be set up in every undertaking where 15 or more persons are employed. A works council shall not be deemed to be duly constituted unless over 50 per cent of the workers in the undertaking attend the founders' meeting. By virtue of the functions assigned to it by section 425 (conclusion of collective agreements, intervention in labour disputes, economic and social betterment of its members, etc.), a works council is a union at the level of the undertaking. When it is formed it must have the support of a majority of the workers in the undertaking and it is granted two special prerogatives section 182 provides that where there is a works council it shall be responsible for negotiating the collective agreement on behalf of all the workers in the undertaking, and section 448 provides that a strike may be called only by the works council, where such exists, or failing that by a majority of the workers in the undertaking or factory.
8. 94. The Committee noted in a previous case that, while there is no necessary incompatibility with Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in a provision for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit, this is the case only if a number of safeguards are provided. The Committee listed a number of safeguards which corresponded to the practice followed in other countries that had adopted such a system. These safeguards included provision to the effect that certification should be by an independent body and that the representative organisation should be chosen by a majority vote of the employees in the unit concerned.
9. 95. In the case of Ecuador it is laid down by law that for a works council to be formed the founders' meeting must be attended by over 50 per cent of the workers in the undertaking. It emerges from the Government's reply that it considers that there should be only one meeting. The Committee observes that this requirement may turn out to be impracticable in the case of a railway undertaking if the line covers an extensive part of the national territory. The Committee also observes that there appears to be no definite rule with regard to the procedure to be followed in order to determine whether a works council has majority support when the undertaking is of the type involved in this case, and when such majority support is questioned. On the one hand the presidential decision refusing to approve the by-laws seems to accept the system of signatures adopted by the Works Council, and bases the refusal on the report of the committee of inquiry, according to which only a minority of the workers stated they were in favour of the Works Council; and on the other hand the Government in its reply gives as a ground for refusing approval that "there was never a genuine constituent assembly reflecting the unity of action which is an essential feature of a founders' meeting in the proper sense". Similarly, the report from the Office of the Legal Adviser of the Ministry of Social Welfare and Labour does not recognise the system of signatures, and emphasises that the founders' meeting must be attended by over 50 per cent of the workers or that the delegates who attend such a meeting must have been elected at local meetings.

B. B. The Committee's conclusions

1. 96. Moreover, it emerges from the documents examined by the Committee that there is no concordance with regard to the facts either. The complainants allege that 1,587 signatures were collected, plus 164 at a later date, making a total of 1,751. This figure would exceed 50 per cent of the workers in the undertaking, who are said to total 3,030 according to figures supplied by the book-keeping department of the undertaking. The labour inspector involved in this case certifies that he received 1,587 signatures and that this figure "corresponds to over 50 per cent of the workers on the State Railways". The Government in its reply transmits the report from the Office of the Legal Adviser of the Ministry, which states that it emerges from the investigation that some 95 per cent of railway workers said they were opposed to the Works Council. On the other hand the presidential decision refusing approval of the by-laws states that the application was accompanied by 1,538 signatures, that the workers of the undertaking total 3,330 and that the committee appointed by the Chamber of Deputies to go into the workers' wishes reported that 1,075 said they were in favour of the Railwaymen's Union, 375 in favour of the Works Council and 133 in favour of both, while 60 resigned from the Works Council and 70 expressed a wish to belong to neither organisation. Subsequently the Chamber of Deputies sent in documents reporting the resignation of 141 workers from the Works Council. A copy of the report of the special committee of the Chamber of Deputies which was sent in by complainants states that not a single forged signature was discovered and that 1,182 workers were questioned, of whom 821 said they were in favour of the Railwaymen's Union and 467 in favour of the Works Council, while 39 did not belong to any organisation. In a few cases the workers were members of both organisations. The report also refers to a total of 3,030 workers in the undertaking.
2. 97. The Committee observes that both the Office of the Legal Adviser and the report of the committee appointed by the Chamber of Deputies agree that on a certain part of the railway line most of the workers stated that they were in favour of the Works Council whereas on another sector a majority were on the side of the Railwaymen's Union. The committee of inquiry explained that it recorded a smaller number of statements of allegiance to the Works Council because it was easier to make the count in the latter sector, where the Railwaymen's Union had a larger number of supporters, and that "it had been very difficult to question permanent way and travelling personnel, among whom there seemed to be large numbers who were members of the Works Council, because it was impossible to find the workers at their place of work".
3. 98. In their allegations the complainants submit particulars of the inquiry carried out by the committee appointed by the Ministry of Social Welfare and Labour. The Government has made no comments on this. According to the complainants, who have forwarded affidavits from two officials of trade unions affiliated to C.E.D.O.C who accompanied the committee, the officials of the Ministry refused to accept new members of the Works Council, whereas they accepted resignations from it and new members of the Railwaymen's Union. Similarly, preference was given to the meetings organised by the Union and by the State Railways; a number of workers reported that they were coerced into signing for membership of the Union and into resigning from the Works Council. The witnesses also noted that members of the management (one of them a brother of the General Secretary of the Union) organised meetings hostile to the Works Council to give support to the Union.
4. 99. The Committee has always recognised the major importance of the principles embodied in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment and that their organisations should enjoy independence from all interference by employers.
5. 100. On the basis of all the foregoing information the Committee observes that there is a series of discrepancies with regard to the legal interpretation of the procedure applicable to the formation of a works council and with regard to the facts themselves; with regard to the latter the discrepancies relate to the number of workers in the undertaking and the number of members or supporters of the two trade union organisations, as well as to the appointment of the delegates who attended the meeting held to set up the Works Council. The Committee also notes that in no case do all the workers of the undertaking seem to have been questioned and that in no case have figures been collected that would allow a final judgment to be reached on the number of members of either trade union organisation. On the contrary, the procedure used to check whether the Works Council did or did not have majority support seems to have given rise to acts of discrimination and interference by employers and at any rate to have made it difficult for the workers to express their views freely.

The Committee's recommendations

1. 101. In the circumstances the Committee recommends the Governing Body:
   • (a) to draw the Government's attention to the desirability of introducing, for cases in which there is controversy as to whether a representative trade union organisation enjoys majority support, a system embodying the necessary safeguards to ensure that all the workers concerned will be able to express their views freely and giving effect to the principle that the certification of the representative organisation should be by an independent body and that the organisation should be chosen by a majority vote of the employees in the unit concerned;
   • (b) to suggest to the Government that it might care to reconsider the position of the Works Council for the State Railways in the light of the foregoing recommendation; and
   • (c) to draw the attention of the Government to the importance which the Governing Body has always attached to the principles embodied in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment by reason of union membership or because of participation in union activities, and that their organisations should enjoy adequate protection against acts of interference by employers.