Individual Case (CAS) - Discussion: 1999, Publication: 87th ILC session (1999)

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

The Government has supplied the following information:

During the workshop-seminar on international labour standards and their application in Ecuadorean law, organized from 17-18 February 1999 in Quito, under the auspices of the ILO Regional Office in Lima, there was a significant dialogue as well as a rapprochement between the deputies of the National Congress attending the event and the Minister of Labour and Human Resources. The possibility of communicating to the Congress a draft law revising the Labour Code and related laws was raised, in particular as concerns Conventions Nos. 87 and 98.

A new Constitution entered into force on 10 August 1998 resulting in a reinterpretation of all national legislation and an ongoing reform process. In light of the new Constitution and the results of the aforementioned workshop-seminar, the Minister of Labour and Human Resources collected and updated proposals for two draft reforms prepared in the context of the technical assistance mission (4 to 10 September 1997) to bring the legislation into conformity with the provisions of Conventions Nos. 87 and 98. Thus, exemptions and modifications are planned regarding certain legislative provisions criticized in observations and direct requests from the Committee of Experts, since the Government has already undertaken to implement the technical directives suggested by the ILO.

It is important to emphasize that certain suggested reforms will be routed alternatively as the length of the examination of the reforms by the Congress remains undetermined. As in the past the ILO will be informed as soon as the results of these various initiatives are known.

Argumentation

Since its entry into force on 10 August 1998 the Constitution sets forth the protection that the State owes to the worker, its attachment to the principles of social law, the intangibility of workers' rights, and, in particular, as is set forth in paragraphs 6 and 9 of article 35 which set forth respectively: "In case of doubt on the extent of legal, regulatory or contractual provisions as regards labour, these shall be applied in the manner most favourable to workers"; "The right of workers and employers to organize is guaranteed, as well as their free development, without prior authorization and in conformity with the law." The right to freedom of association is an inalienable principle and even in case of doubt in legal terms it must be defended and promoted by the State.

The harmonization of national legislation with a view to bringing it into conformity with the provisions of ratified international labour Conventions is an obligation from the time the Government joined the ILO and ratified the Conventions in question. This remains in practice a necessity according to the comments sent to the Government by the Committee of Experts concerning the failure to respect these Conventions. In this perspective, Conventions Nos. 87 and 98, which set forth rights and principles applicable to employers and workers would tacitly derogate, by virtue of article 163 of the Constitution, from various articles of the national Constitution and would entail the obligation to modify other articles. Thus, the provisions of these Conventions must be explicitly incorporated into the national legislation.

For the aforementioned reason, the Government presents the following draft of the law revising the Labour Code to ensure conformity of national legislation to current necessities and requirements.

Proposal for the revision of the Labour Code

Art. 1: Following article 452 of the Labour Code, the following paragraph will be inserted:

"Following communication of the refusal of official registration, a request for legal verification can, within 30 days, be filed with the competent legal authorities."

Art. 2: Article 466, paragraph 2 of the Labour Code, will include the following paragraph:

"In case of refusal to approve the works committee because of provisions contrary to the Constitution or to laws, the regulation will be as indicated in article 452."

Art. 3: Article 454, paragraph 11, will include the following paragraph:

"Under the protection granted by constitutional standards, higher-level organizations will have the right to express their opinions peacefully as to the economic and social policy of the Government."

Art. 4: In article 466, paragraph 4, the word "Ecuadoreans" is deleted.

In addition, a Government representative expressed his Government's regret at the observations regarding the lack of conformity of its national legislation to the provisions of Convention No. 98. He stated that he would take all steps to achieve the required harmonization. Over the past two years Ecuador had been through particularly difficult political circumstances, having removed a constitutional President of the Republic, established an interim Government which, 18 months later, yielded power to the present President of the Republic, who although legally and democratically elected by the people in May 1998, only took up his post last August. At the end of 1997, a constituent National Assembly had been established in Ecuador, charged by the people to draft a new Constitution. The Assembly, after six months' deliberation, set out a new Constitution, which entered into force on the day of accession of the new Government, that is, only on 10 August 1998. Among its basic standards, the Constitution included the following: it set forth the protection that the State owes the worker, its attachment to social law and the intangibility of workers' rights. The speaker referred to the text of article 35, paragraphs 6 and 7, on the right to organize, reproduced in the written information communicated by the Government, and stressed that the right to freedom of association was an inalienable principle which could not be violated and which the State must defend and promote. Further, paragraph 12 of article 35 of the Constitution expressly guaranteed the right to collective bargaining. Consequently, any legal agreement thus established could not be unilaterally modified or altered in any way. Article 163 was of special importance, since by virtue of this article the standards set forth in international treaties and Conventions, when promulgated, would become an integral part of the national legislation and would take precedence over lower-ranking laws and other standards. Thus, under the terms of the Constitution, international Conventions, and in this specific case of the ILO, would be automatically incorporated into Ecuadorean legislation and would be accorded a special importance, taking precedence over such laws and standards as might be in opposition to them.

However, it goes without saying that the drafting of a new Constitution involves alterations in national standards, and as such represents a major legal undertaking, so as to bring secondary legislation into line with the text of the new Constitution as well as several texts which had already been elaborated, with the cooperation of the ILO through a technical assistance mission in 1997, agreement of the texts with the new Constitution should be attained, with no concurrent diminution in their value and applicability. Finally, he stressed the value of the constitutional standards and their guaranteed application, by stating that whoever claimed his rights as a worker, as guaranteed under article 163 cited above, and had been infringed could submit an appeal in two ways: either in the form of a habeas corpus procedure, before a judge of the first instance, or directly to the Constitutional Tribunal, court of the highest independent jurisdiction.

In conclusion, he reiterated his regret that, for reasons already expressed centering around the political and legal instability through which his country had been passing until only a few months previously, and the recent entry into force of a new Constitution, that it was not possible on this occasion to report any definite results regarding the observations made on Ecuador's application of the Convention. In this connection, an information campaign launched this year with the aid of the ILO Regional Office (Lima) would raise awareness of legal and judicial functions and increase the scope of the country's commitment to ILO Conventions, thereby ensuring their application by the legal administrators; the campaign would also encourage members of National Congress to establish joint action with the Government and most importantly, with employers' and workers' organizations. This should yield definite progress in a very short time, with the drafting of legal standards in harmony with the Conventions and the constitutional standards. Thus worker and employer groups would join with the Government, with a view to stimulating legal action in all necessary fields. The speaker closed, thanking the ILO for the great help it had already given to Ecuador, and expressed his hope that his country could continue to count on the Office's aid.

The Worker members recalled that for several years previously the Committee had examined this case concerning the application by Ecuador of several Conventions, including the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The current situation in Ecuador as regards trade unions has been examined since 1987 and in 1988 and 1989 the case of Ecuador was even mentioned in a special paragraph. Specific observations had been formulated by the Committee of Experts in 1990, 1991, 1992, 1994, 1996 and 1998 as regards the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Several technical assistance missions had been carried out in Ecuador by the ILO with a view to ensuring that the appropriate measures be taken. The Worker members had nonetheless had to conclude that these actions had had no effect on the content of the responses by the Government; it continued to assert that it was examining the problem and that it would soon enact new legislation. The progress that occasionally had been noted had been too slight to be credible.

The Worker members noted that the Government made reference to the new Constitution both in its written and oral submissions. This Constitution provided expressly that freedom of association be implemented by legislation. The relevant legislation had, however, not yet been amended although the Minister of Labour had announced future amendments. Furthermore, the Government had only made reference to certain selected parts of the Constitution. Other provisions of the Constitution, such as the imposition of a trade union monopoly within state institutions, did not, however, conform to international standards. The Government did in fact limit itself to citing selected provisions and principles of the Constitution, but did not make reference to any other concrete measures that would have been taken in response to the main substantive issues and the frequent discrepancies noted by the Committee of Experts. The Government had even succeeded in surprising the Committee of Experts last year by wholly ignoring the results obtained during the technical assistance mission.

According to information from Worker members, the Government had decided in April 1999 to replace the SENDA (the National Secretariat of Administrative Development) by another system -- the National Council for Wages in the Public Service. This Council was composed of three members -- the Ministers of Finance and of Labour, and a worker member. The Council took its decisions by majority and had been given wide competence. It had total control over collective bargaining and fixed maximum wage levels. It could also forego the application of a collective agreement. The Committee of Experts noted in its report again this year that no measures had yet been taken to amend article 3(g) of the Civil Service and Administrative Careers Act to allow members of the public service or other public institutions or private institutions with social or public function to exercise the rights provided for in the Convention. The Committee of Experts regretted that the report of the Government made no reference to the questions raised regarding protection against acts of discrimination against trade unionists in employment or to the provisions in the Labour Code regulating the submission of draft collective agreements. Finally, the Committee of Experts had felt compelled to recall to the Government that, as regards teachers, it was requested to take measures to amend its legislation so that teachers could exercise the right to collective bargaining at all levels. In its examination of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee of Experts "while taking note of the goodwill expressed by the Government, observes that there continues to be a large number of provisions that should be modified in order to bring the legislation and the practice into conformity with the Convention". Furthermore, the Committee had noted that certain new provisions of the 1998 Constitution gave rise to, or could give rise to, problems with respect to the application of the Convention.

The Worker members emphasized that they agreed that the Committee of Experts should make reference to the good intentions expressed by the Government. However, although the Government had good intentions, they might prove wholly insufficient. It was becoming increasingly difficult to accept recurrent declarations of good intentions reiterated year after year, in particular as the ILO had spared no efforts to provide technical assistance to the Government. The Worker members declared last year that "technical assistance and direct contacts missions of the ILO were not intended to serve as means to gain time. They were intended to promote the application of the Conventions by a thorough examination of the problems and by a search for and implementation of efficient solutions". The Worker members therefore had demanded that specific conclusions should be formulated. They had requested that the Committee re-examine the case again this year and they had also requested that this demand be contained in the conclusions by the Committee. The authorities should cease to interfere with collective bargaining and should bring their legislation into conformity with the provisions of the Convention both in the private and public sectors taking into account all the observations made for more than ten years by the Committee of Experts. The Government should provide a detailed report of measures taken in time for an analysis by the Committee of Experts. Finally, should no progress be noted in the course of the next year, the Worker members would propose another set of conclusions in the Committee's report.

The Employer members noted that last year this Committee had examined the case of Ecuador with regard to its application of Convention No. 87. Although the case before this Committee was not on the same subject-matter as that case, the problems which had occurred with respect to the implementation of Conventions Nos. 87 and 98 were similar. They noted that following a technical assistance mission in 1997, two Bills had been drafted for the purpose of repealing, inter alia, section 1 of Decree No. 2260 which imposed the requirement that the National Secretariat of Administrative Development (SENDA) provide advice on draft collective agreements in the public sector. In this respect, they agreed with the findings of the Committee of Experts in its observation that this provision itself was not contrary to the provisions of the Convention, and pointed out that the ILO had no right to interfere with national matters in this respect. Moreover, they noted the information communicated by the Government in its report to the Committee of Experts to the effect that SENDA no longer existed.

With reference to collective bargaining in the public sector, they said that legal action should be taken in order to enable workers in official departments or other public sector institutions, as well as private sector institutions within the social or public sphere, to enjoy the rights enshrined in the Convention. In addition, it was necessary that provisions be modified so that the establishment of works committees was not dependent on the requirement that they be established by more than 50 per cent of the workers in question. With regard to the education sector, they recalled that although teaching staff did enjoy the right to organize and to bargain collectively at the national level, it should be for the trade union to decide at which level -- national, regional, provincial or branch -- it wished to carry out collective bargaining. However, they appreciated the attitude of the Government with respect to the need to take appropriate action. In conclusion, they stated that the preparation and adoption of the new Constitution referred to by the Government representative was not sufficient. A constitution provided a framework which needed to be implemented by law. Therefore, the Government should be requested in the conclusions of this Committee to continue at a rapid pace the legislative process that had already begun in order to bring its national legislation into conformity with the provisions of the Convention.

The Worker member of the United States indicated that the Committee in its consideration of this case seemed to be constantly searching for the truly honest government, since the same basic issues concerning the country's non-compliance with the Conventions on freedom of association, the right to organize and to bargain collectively had come before this Committee a number of times. He noted that during the course of an ILO technical assistance mission, the Government had stated that it was taking all the necessary measures to remedy several areas of non-compliance with the Convention. The Government had pointed in particular to two bills drafted in 1997; however, these bills had still not been enacted into law. While recognizing that this Committee had chosen to discuss the observation of the Committee of Experts concerning Convention No. 98 rather than Convention No. 87, he stressed that the rights set out in these two Conventions are closely intertwined, and the issues related thereto are often difficult, if not impossible, to separate.

The Worker member stated that, despite the Government's assertions, a large portion of public sector workers classified as civil servants and administrative career personnel, including public school teachers, did not have the right to bargain collectively or to strike. He noted that while the National Union of Educational Personnel may be allowed to take part in a sort of collective forum, this could not be equated with the right to bargain collectively concerning wages, hours and terms and conditions of employment, nor was it an acceptable substitute for the right to strike. He also pointed to the fact that although SENDA no longer existed according to the Government, due to a law enacted in April 1999, this body had been replaced by the National Public Sector Remuneration Council, which could not be considered to be truly tripartite since the Government representatives sitting on the Council could outvote the social partners. He emphasized that this Council had total authority to determine wages, hours and terms and conditions in the public sector, and that collective agreements with public sector workers could not include indexed wages. In addition, public sector employers illustrating economic difficulties were entitled to suspend their obligations under collective agreements.

Like the Committee of Experts, he expressed regret that there had been no response from the Government concerning the lack of legislative protection against anti-union discrimination at the time of recruitment in both the public and private sectors. He asserted that without such provisions, one could not reasonably find that there had been effective compliance with either Convention No. 87 or 98. With respect to workers in the public sector who are denied the right to bargain collectively, as well as those private sector workers classified as being employed in a social or a public sphere, who may only exercise that right if they succeed in establishing Committees authorized by more than 50 per cent of the entire workforce, he emphasized that this continuing legal obstacle effectively denied collective bargaining rights to a large segment of the workforce.

Although it had not been raised by the Committee of Experts, he drew the Committee's attention to the 1990 Export Processing Zone Law. In his view, this Law gave rise to significant problems with respect to the country's obligations under the Convention, since it allowed any enterprise to obtain EPZ status regardless of where it was located in the country, thus enabling temporary workers to be hired outside the scope of the guarantees provided in the Labour Code, particularly with respect to the right to organize and to bargain collectively. Furthermore, he asserted that there could be no effective or substantial compliance with either Convention No. 87 or 98 where the Government and the legal system could not protect the physical integrity and the freedom of expression of workers and their representatives. In this context he indicated that on 30 September 1998, a government official had publicly threatened to prosecute the President of the Confederation of Ecuadorean Free Trade Unions on the basis of "disparaging remarks about the country and for threatening national security". He asserted that this illustrated that trade unionists exercising freedom of expression in the country suffered threats of reprisals. In addition, on 5 September 1998 the tortured corpse of an executive officer of the Ecuadorean Trade Union Central was found.

The Worker member of the United States then concluded by expressing his full agreement with the recommendations of the Committee of Experts, and he hoped that the Government would be able to demonstrate real progress with regard to compliance with the Convention.

The Worker member of Guatemala welcomed the explanations given by the Minister of Labour of Ecuador and confirmed that Ecuador's new Constitution did indeed contain social and labour rights that guaranteed collective bargaining and gave priority to international standards over national standards. Problems arose, however, in their practical application. Constitutions were not regulations and only contained principles that then had to be given effect by ordinary domestic legislation. He stated that taking into account the background, the Committee should reach the conclusion that the problems relating to the application of Convention No. 98 persisted and needed to be resolved, thus the conclusions of the Committee of Experts should be supported. As the Minister of Labour had indicated, an appeal could be lodged and there were other ways of contesting constitutionality, but the procedures were lengthy and did not prevent damage being caused. Ecuador should not only bring its legislation into line with ILO standards, but also with the principles set out in its new Constitution. He underlined the benefits of negotiation for resolving social problems. Lastly, he indicated that in Ecuador there were limitations on the right of association and collective bargaining in the teaching sector.

The Worker member of Ecuador commended the Committee of Experts on its report, particularly in relation to the application by Ecuador of Conventions Nos. 87 and 98. He stated that one of the draft laws prepared by a technical assistance mission in 1997 had envisaged the abolition of the National Secretariat of Administrative Development (SENDA), after consensus had been reached between the Government, workers and employers, in view of the fact that SENDA could unilaterally, under the terms of Decree No. 2260, modify agreements which had been freely concluded by the parties through a collective agreement. In its report, the Government had stated that SENDA no longer existed and that it was about to take measures to abolish its functions. In practice, these functions had been assigned to a body called the National Public Sector Remuneration Council, with the aggravating factor that it had been given unlimited powers to establish maximum levels of wage increases, social benefits and conditions covered by collective agreements, thereby eliminating the freedom to negotiate. Although this body included a workers' representative (the other two were from the Ministry of Labour and the Ministry of Finance), it was clear that its decision would be taken in the exclusive interests of the Government, which had, therefore, become both judge and jury.

With regard to the request made by the Committee of Experts that section 3(g) of the Civil Service and Administrative Careers Act be amended, it was essential to take into account the provisions of section 253 of the Labour Code, which protected the right of all workers in social and public bodies to collective bargaining, and only excluded managerial and administrative level officials. Similar protection was set out in article 35 of the Political Constitution of the State.

He recalled that the Government had not taken any measures to overcome the incompatibility between national law and practice and the Convention. Anti-union discrimination had worsened, as evidenced through various practices and laws. Dating from the reform of the Labour Code in 1991, employers were recruiting workers through intermediaries and contractors, although they always avoided taking on more than 29 workers, so that the workers were not able to establish a trade union or engage in collective bargaining. In Ecuador, the minimum number of workers required to be able to exercise this right was 30. Moreover, there was no legal right to conclude sectoral-level collective agreements. These could only be concluded at the enterprise level. Many employers required workers to join associations which were controlled by the enterprise. When workers decided to organize for the first time and proposed a collective agreement, they were dismissed and had to initiate legal action to obtain compensation. This situation had given rise to great fear among workers who were trying to organize and propose collective bargaining that they ran the risk of losing their job in a country in which, of the economically active population of 4.2 million persons, around 3 million were unemployed or underemployed.

With regard to the freedom of association and right to collective bargaining of teaching personnel, there had been no progress. Teachers were obliged to call at least one lengthy strike each year to obtain wage increases.

He stated that the Government's report encouraged the hope that progress could be made in law and practice for the application of the Convention. However, in practice, exactly the contrary was occurring, as illustrated by an examination of the content of sections 51 to 57 of the Act to reform public finances of 30 April 1999. This Act was in contradiction with Conventions Nos. 87 and 98.

Nevertheless, despite the above, there was a readiness on the part of the Government to undertake legislative reforms for which, as it had stated in its report, it would call upon the technical assistance of the ILO. Based on this statement, and in view of the fact that technical assistance missions had been undertaken on various occasions, it might be necessary to send a direct contacts mission to achieve once and for all the harmonization of national law and practice with the Convention.

The Government representative stated that the National Secretariat of Administrative Development (SENDA) no longer existed; therefore, its authority unilaterally to amend agreements reached freely by parties to a collective agreement had been abolished. As far as the situation in Ecuador was concerned, he explained that the Constitution itself could not give effect to the provisions of the Convention, which required the enactment of hundreds of laws that would be adopted over the next four years. He highlighted the work carried out by the ILO Office in Lima, which supported the Government's efforts to promote ILO standards. Lastly, he reaffirmed the Government's intention to bring its legislation into conformity with the provisions of the Convention.

The Committee noted the statement made by the Minister of Labour and the written information supplied by the Government as well as the discussion which took place thereafter. It noted the constitutional developments which had taken place recently, but expressed serious concern that there had been very little progress in the situation of compliance in law and practice with the Convention. It urged the Government to take the necessary measures without delay to bring its legislation into full conformity with this fundamental Convention ratified 40 years ago. In particular, it stressed the need to reinforce the protection of workers against acts of anti-union discrimination at the time of recruitment and to remove the administrative obstacles to free collective bargaining in the private sector. The Committee also strongly urged the Government to take the necessary steps to ensure that workers in official departments or other public or semi-public sector institutions, as well as teachers at all levels, enjoy fully the right to organize for the protection of their occupational interests and the right to bargain collectively their employment terms and conditions. It recalled that the International Labour Office was at the Government's disposal to provide technical assistance which might be necessary in this regard. The Committee expressed the firm hope that the Government would supply detailed information to the Committee of Experts in its next report on the measures effectively taken to ensure in the very near future full compliance with the Convention in law and in practice.