Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)

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



A Government representative said that Ecuador’s commitment to respect and observe international labour standards dated back to when it joined the ILO in 1934. It had ratified 61 ILO Conventions, including Convention No. 98 and, most recently, the Workers with Family Responsibilities Convention, 1981 (No. 156), and the Domestic Workers Convention, 2011 (No. 189). She emphasized that, with the adoption of the Constitution in 2008 by way of a majority vote by the people of Ecuador, a new set of social policies had been established based on the ancestral Andean philosophy of Sumak Kawsay, or living well, which were geared to ensuring basic needs and life in harmony with nature. From that perspective, economic growth should be achieved taking into consideration a fair distribution of wealth. As such, priority had been given, not to the payment of foreign debt, but to the payment of social debt, and the 8 per cent fall in poverty between 2007 and 2011 had been achieved on the basis of the implementation of a national system for inclusion and social equity which respected diversity, prohibited discrimination of any kind and facilitated the full enjoyment of human rights, particularly the rights to work, food, health, housing and education. The progress made had enabled her country to be a benchmark for achievements in terms of plans for people with disabilities, action against child labour, and in particular, by its worst forms, environmental protection, reduction of extreme poverty and improved wealth distribution. In order to attain these objectives, a socio-economic inequalities atlas had been published, with the support of 12 bodies related to the United Nations. She added that the Constitution established the right to decent work and rights such as the workers’ right to organize without prior authorization. Alongside the Constitution, specific measures had been adopted in the labour sphere, with the aim of overcoming disparities between workers who, although carrying out the same work for similar hours of work, were not entitled to the same remuneration or the same social benefits. A mandatory social security system had been introduced, as well as better wages with the change in the production model. Better training for workers had also been promoted with a view to enhancing their options for earning higher wages.

Efforts had been made to developing a new Labour Code that better reflected current realities and was more in line with the international Conventions ratified by Ecuador. The draft had been developed with the ILO’s participation and had been submitted to the National Assembly on 1 May 2014. The articles had been structured along the lines of Convention No. 98, with the emphasis on the organization of workers and the establishment of trade unions, in the context of freedom of association. Its provisions included the following: prohibition of any act that obstructed workers in the formation of trade unions; prohibition for employers to terminate a contract of employment while the worker was on leave; prohibition of any type of act aimed at restricting or undermining workers’ rights to organize, and also of interference in the establishment, administration or support of workers’ organizations; and guarantee of collective contracts as a way to improve, inter alia, conditions of work in terms of wages, occupational safety and health, food and hours of work. The draft new Labour Code was progressive in establishing new types of unions and unionization by sector. Workers would be better represented and their rights would be more effectively guaranteed. Regarding the reinforcement of trade unionism, she said that the number of trade union registrations had significantly increased to 479, which represented a 300 per cent increase over the number established in the previous decade. The current Labour Code established the right to collective bargaining. However, collective bargaining agreements in certain public sector bodies contained clauses providing for excessive benefit, which created a privileged situation for the workers concerned amounting to a clearly unfair and discriminatory situation vis-à-vis other workers in similar conditions in the public sector. The magnitude of those benefits could be appreciated by referring to 363rd Report of the Committee on Freedom of Association on Case No. 2684, paragraph 555 of which indicated that one of the complainant organizations had alleged the unjustified dismissal of some 300 workers of a State enterprise, and paragraph 556 stated that those workers were claiming the compensation due to them (US$200 million), as well as compensation for the damages caused). She emphasized that with a view to overcoming such imbalances, the Constituent Assembly, responsible for the drafting of the Constitution in 2008, had promulgated Constituent Resolutions Nos 2, 4 and 8, which had absolute legitimacy, as they had been promulgated on the basis of the people’s will expressed by means of several popular votes. Ministerial Orders Nos 00080 and 00155 did not restrict either collective bargaining or freedom of association. On the contrary, they contained standards, regulations and parameters for negotiation and above all they sought the full application of universal human rights principles, the upholding of equity and equality in the enjoyment of rights, and the application of the constitutional principle of equal pay for work of equal value. Lastly, she invited the ILO to send a technical cooperation mission, similar to the one received from 15 to 18 February 2011, details and objectives of which would be defined in due course.

The Employer members said that the present case relating to a fundamental Convention had been examined in 1987 and 1999. In 2013, the Committee of Experts had made several observations. In relation to Article 1 of the Convention on protection against acts of anti-union discrimination, it called for a specific provision guaranteeing such protection in the private sector. Regarding Article 4 on the promotion of collective bargaining, there was a need to amend section 229 of the Labour Code so as to allow minority trade union organizations, on their own or jointly, to submit draft collective agreements. The systemic nature of the Labour Code meant that any reform needed to involve meetings with tripartite bodies so as to ensure that reform was comprehensive. In the public sector, the new legislation did not provide for penalties for acts of anti-union discrimination or interference, and classified as public servants the great majority of workers in that sector, thereby denying them the right to collective bargaining. They referred to Decree No. 225 of 2010, which enabled the Ministry of Industrial Relations to unilaterally revise collective contracts applicable to workers in the public sector; the Basic Act on Higher Education (LOES) of 2010; and the Basic Act on Intercultural Education (LOEI) of 2011, which did not recognize the right of public employees in the education sector to engage in collective bargaining. They called on the Government, in consultation with the employers and workers, to take into account those observations aimed at amending legislation and to send a report on developments on this matter. They added that the Committee on Freedom of Association had referred to the Committee of Experts the examination of the legislative aspects of Case No. 2926 regarding allegations of many anti-union dismissals which were carried out in the public sector through the procedure known as the “compulsory purchase of redundancy”, established under Executive Decree No. 813. The Employer members endorsed the recommendations of the Committee on Freedom of Association in paragraph 391 of the 370th Report and reproduced below:

(a) Emphasizing that the principle of adequate protection against acts of anti-union discrimination is fully applicable to public employees and workers, the Committee requests the Government to carry out an independent investigation, without delay, into the alleged anti-union character of the various dismissals and terminations specified in the complaint. If these allegations are found to be accurate, the Committee requests the Government to take the necessary steps to rectify the anti-union discrimination and to re-employ the victims. The Committee requests the Government to keep it informed of the measures taken in this respect, and of their outcome.

(b) The Committee requests the Government to ensure that the trade unions are consulted on the implementation of Executive Decree No. 813 with the view, inter alia, of avoiding any non-compliance with provisions of collective agreements and preventing any occurrence of anti-union discrimination. In this respect, the Committee requests the Government to ensure that such consultations provide for the need to take measures, including legislative and regulatory measures if necessary, to introduce effective sanctions in the event of anti-union terminations and dismissals in the public sector.

(c) As regards the various judicial proceedings initiated against the adoption and implementation of Executive Decree No. 813, the Committee requests the Government to keep it informed of their outcome, and expects that the courts will pay due heed to the principle of protection against anti-union discrimination.

The Worker members recalled that the Committee of Experts had been commenting on the present case for over 20 years, without any tangible result. The present Committee had also examined the case in 1985, 1987 and 1999 and, in particular, it had focused on the issue of conformity of national legislation with Convention No. 98 and on anti-union practices that went against the promotion of voluntary and free collective bargaining. Despite the 2008 amendment to the Constitution, certain questions remained in suspense. Many trade unions had been closed down, union leaders had been dismissed and the collective representation of workers had been abolished. Certain practices had led to the destruction of the free union movement. Instead of workers’ organizations, the Government had set up citizens’ associations, such as the Citizens Labour Council, which had replaced the National Labour Council (a tripartite body), thereby denying the representativeness of workers’ organizations and their specific competence regarding the defence of workers’ rights. The new Constitution guaranteed workers the right to join a trade union without prior authorization and the freedom to carry out union activities. However, in practice, the exercise of those rights was hindered by many obstacles: in the private sector, a minimum of 30 workers was required in order to establish a trade union, which deprived a million workers of the possibility of exercising their rights since 60 per cent of enterprises employed fewer than 30 workers; and a trade union was only recognized if it gathered 30 signatures of founding members and submitted them to the employer. With regard to the public sector, the Constitution limited the right to establish trade unions and to negotiate in full freedom, by providing for the representation of workers by a single organization only, namely a single central committee composed of over 50 per cent of employees, which excluded minority unions. The Government had announced that the conditions of service of public sector employees would be standardized under one legal status under “administrative” law, which would indirectly put an end to the right to join a trade union or negotiate in the public sector. The majority of public sector workers would fall into the category of “public officials” and would thereby be denied the right to collective bargaining. It appeared that the new draft law had not been subject to consultation with the social partners. They recalled that since 2008 the main requests of the Committee of Experts covered: the amendments of several laws, of the chapter on labour of the Constitution and of certain ministerial agreements; the reinstatement of union leaders who had been removed from their functions; the need to conduct independent investigations into allegations of anti-union practices; and consultation with workers’ organizations.

Regarding the education sector, they referred to several serious cases of anti-union discrimination which had resulted in the imprisonment of the persons concerned: Mery Zamora, former President of the National Confederation of Education Workers of Ecuador had been sentenced to eight years in prison for sabotage and terrorism for the mere act of carrying out her mandate as President of the union; Luis Chancay had been removed from his post as a teacher for having carried out his functions as President of the National Union of Educators in the Province of Guayas; Carlos Figueroa from the Ecuadorian Medical Federation had been sentenced to six months in prison for having allegedly insulted the Government of the day; Clever Jimenez, Sisa Pacari, Mariana Pallasco and many others had been arrested and detained arbitrarily. They insisted on the need for the Government to bring its legislation into conformity with the Convention. The refusal of the Government to consider the urgent need to restore freedom of association and the right to collective bargaining of workers in the private and public sectors undermined the image of the country in other organizations, such as the World Trade Organization and the Human Rights Council.

A Worker member of Ecuador, referring to the decisive contribution of the workers’ movement in the history of Ecuador said that for the workers it was all about weakening an oppressive system and severing ties with those who undermined social cohesion, exploited workers, exacerbated unemployment and precarious employment and encouraged the unfair distribution of wealth. Ecuador had suffered repeated currency devaluations, constant increases in fuel prices and public utility rates, restrictions on public spending, wage adjustments, with their severe impact on the informal economy, the deterioration of the production system and the dismantling of the State and of the whole of the national regulations and control system. That in turn had led to millions of Ecuadorians having to leave the country, the collapse of the national currency and ultimately the banking crisis and the adoption of a rescue package, which had provoked the biggest political crisis in the country’s history. He said that it was still difficult to speak of substantial changes in the country. However, the new Constitution continued to provide the workers with the means of establishing forums for dialogue in these uncertain times. While not a workers’ government, the present Government did at least enjoy national legitimacy, and there had been significant progress in education, health, housing, infrastructure, fuel policy and tax reform. In labour matters, however, there was no clear strategy for a national policy with the involvement of the workers, and workers were seriously threatened by dismissal and by administrative measures. He added that the draft new Labour Code, which had been submitted to the National Assembly, did not correspond to the needs or interests of the workers, but rather to those of the employers. The Constitution and ILO Conventions emphasized that labour rights were irrevocable and intangible, but the present Government sought to eliminate such rights as collective bargaining, the right to strike and pensions financed by employers. The national trade union movement therefore called for the draft to be replaced by a text reflecting the workers’ aspirations. It was essential for the underemployment rate to be significantly reduced, and for productivity and land distribution to be improved. In short, what was needed was to combat poverty, to support regional governments in their efforts to find new ways of combating injustice, social inequality and the imbalance between peoples and countries, and to eradicate hunger and poverty. A combined effort was needed to devise a new financial system and wage policies designed to introduce a fair minimum wage for each region. That should prevent workers from being exploited and employed on precarious contracts. Measures were required to eliminate all forms of child labour and exploitation and to enable young people and women to join trade unions. Trade union action in defence of agricultural workers and Ecuadorian communities abroad needed to be strengthened. Finally, given the abusive dismissal of workers in the public sector and elsewhere, and the fact that a new Labour Code was currently being drafted, he emphasized the need for the ILO to follow up the situation and make its observations on the spot, so that the complaints raised in the present Committee could be verified impartially.

Another Worker member of Ecuador observed that Ecuador’s Constitution provided, among its fundamental precepts, that development should be based on the creation of dignified, and stable work. Development therefore needed to guarantee all workers employment, a fair wage, health and safety at work, stability and social security. Collective bargaining processes had suffered heavily since the fragmentation of the trade union movement. Eight trade union federations existed for fewer than half a million organized workers, and of the 4.5 million Ecuadorians who had the right to belong to trade unions, only 2 to 3 per cent were actually members, most of them in the public sector. Unionization hardly existed in the private sector, which meant that there was no collective bargaining. Various aspects of collective bargaining had been abolished by constituent resolutions and executive decrees. Collective contracts had been reviewed, and in the process the Government had proposed to treat public sector institutions in the same way, meaning that currently certain rights were no longer discussed individually, and wages were tied to inflation. Section 229(3), provided that “public sector workers shall be subject to the Labour Code”, from which it could be clearly inferred that workers whom the Ministry of Industrial Relations classified as career public servants and who worked in public enterprises, were not covered by collective agreements and enjoyed hardly any of the rights that the Constitution considered to be inalienable and intangible. That created inequality before the law and seriously jeopardized the future of trade unions, as at least 60 per cent of unionized workers were subject to that system. He called on the Committee to recommend in its conclusions that the Government should fully respect the right to organize and the right to collective bargaining. On 1 May 2014, a new draft Labour Code had been submitted, which sought to establish a single labour system in the public sector, as a result of which all public sector workers would be excluded from labour legislation, thereby definitively eliminating unionization, collective bargaining and the right to strike for that sector. Finally, he requested the ILO’s technical assistance to ensure that the new legislation would contain elements of social justice and equity for all workers, supervisory mechanisms to guarantee decent conditions of work, job stability and strict compliance with workers’ rights, without any kind of discrimination.

The Employer member of Ecuador said that the request of Committee of Experts to amend section 229 of the Labour Code dealing with the submission of draft collective bargaining texts so that minority trade unions whose membership did not comprise more than 50 per cent of the workers covered by the Labour Code could negotiate on behalf of their own members only addressed part of the problem. The objective of the provision was that employers’ and workers’ organizations needed to be genuinely representative, since the submission of draft agreements could result in a situation where it was a non-representative minority of workers which instigated a collective dispute. If the Legislative Assembly were to agree to the Committee’s suggestion, it would have to reform the whole system of collective bargaining so as to avoid trade unions competing against each other in public and private enterprises and discussing issues that were not of interest to the workers they represented. Neither Convention No. 87 nor Convention No. 98 specified a minimum number of workers for establishing trade unions, yet the ILO Constitution and other instruments referred to the “most representative organizations” as having a role to play in various situations. In its report, the Committee of Experts stated that Constituent Resolutions Nos 002 and 004 and Executive Decree No. 1406, by setting a ceiling on remuneration in the public sector and excluding a series of matters from collective bargaining, were incompatible with the Convention. The same applied to Resolution No. 8 and to other instruments, inasmuch as the prevention of certain abuses in the clauses of collective contracts signed by public bodies or enterprises was a matter not for the administrative authority, but for the judicial authority. Those who represented State institutions in negotiations on collective contracts had to be competent people who would handle the issue with the sense of responsibility and due care of those dealing with the money of others, especially when the resources belonged to the community as a whole. However, Employers agreed that the right way to go about things was to abide by the legislation in force, on a case-by-case basis. It was for the competent judicial authorities to prevent or correct excesses or to make sure that wage demands in public institutions that belonged to the nation as a whole were accepted. With regard to the hope expressed by the Committee of Experts that, in consultation with the most representative employers’ and workers’ organizations, the Government would amend the provisions in question, as well as revise the Labour Code as a whole, the employers agreed with the principle that legislative reforms should indeed be conducted in consultation with the most representative social partners, in accordance with the ILO Conventions that Ecuador had ratified. He therefore looked forward to the establishment of the institutions that the ILO had helped to design, such as the Labour Board, which had not yet been convened for its members to examine the draft Labour Code currently before the legislature. Employers were willing to join Workers and the Government in creating an environment in which they could reach solutions by consensus to provide the country with a set of modern standards for promoting employment.

The Government member of Costa Rica, speaking on behalf of Group of Latin American and Caribbean Countries (GRULAC), referred to the progress that had been made in several labour areas in Ecuador since the adoption of its Constitution in 2008, which as a whole, had benefited the workers and their families. The measures adopted were based on respect for human rights and the pursuit of equality and equity for citizens in the exercise their rights, including the right to equal pay for equal work. Regarding the application of Convention No. 98, through the Ministry of Industrial Relations, the Government had, since 2007, encouraged the development of a stronger trade union movement in both the public and private sectors. Some 479 labour organizations had been registered over the period, 300 per cent more than over the preceding decade. The Government had responded to the Committee of Experts’ comments and observations and, where the Committee of Experts had identified outstanding issues, those would be covered by the new Labour Code which, according to information supplied by the Government, was currently being drafted with the assistance of the ILO and of the social partners along the lines set out in Convention No. 98. She trusted that the Government would continue to pursue labour policies that satisfied domestic labour standards and the principles embodied in the ILO Conventions in force.

An observer representing Public Services International (PSI) indicated that in 2009 a delegation of the National Coordinating Body of Public Trade Unions had lodged a complaint concerning regressive labour policies in the public sector. Five years had passed since then and the smear campaign of the public sector trade unions, their leaders and their achievements was continuing. Evidence of that was in the statement made by the Ministry of Industrial Relations during an interview, indicating the fear that the corporate sector might have of the unionization of workers, which could be on account of the unions that existed previously. The trade union organizations of public sector workers no longer had much influence. Public sector workers were committed to social change, justice, equality, equity, democracy and the life of people. What had been considered in 2009 as “isolated facts”, today appeared as part of the steadily regressive State policy which had deepened and affected the right of the population to public services of quality. He called for a high-level tripartite mission to be sent to the country to verify in situ the situation of trade union rights in the public sector and the potential risk of further regression in labour matters in the private sector, and to establish institutional, permanent and representative dialogue with technical assistance from the ILO to comply with the observations and recommendations of the Committee on Freedom of Association.

The Employer member of Mexico endorsed the fundamental importance, emphasized by the Committee of Experts, of proceeding in the context of the draft legislative reform, with the real and effective consultations with the most representative organizations of workers and employers. However, he did not support other observations of the Committee of Experts. The request of the Committee relating to the amendment of section 229 of the Labour Code concerning the submission of draft collective agreements did not consider that, in Ecuador, there were two forms of organizations: (1) work councils, composed of workers of the company who could conclude corresponding collective agreements with the employer; and (2) unions formed by diverse workers, including those working in the company in which they intended to conclude a collective agreement. In the latter case, majority representation was required. The opposite would mean the possibility of destroying the representation of workers, which would have negative effects and would complicate the administration of collective labour relations. The legislation in question did not impede the participation of more than one union and one employer in the conclusion of a collective agreement, but rather imposed order and protected the will of the workers so that they could choose the form of organization best suited to their interests. The opinion of the Committee could lead to a situation in which all workers would be subject to an agreement concluded by a minority and which could give rise to the formation of organizations that did not necessarily serve the interests of workers, but had the right to negotiate collective agreements, which would be contrary to Article 2(2) of Convention No. 98 and the principle of non-interference. Under those conditions, the conclusions of the Conference Committee should not support the recommendations of the report of the Committee of Experts. He also referred to the principles set forth by the Committee on Freedom of Association and, in particular: the distinction between representative unions and other unions; the entity of the “exclusive bargaining agent” with responsibility for negotiating of the collective agreement; and the rules on majority representation in collective bargaining.

An observer representing Education International indicated that teachers in Ecuador were covered by the Basic Act of the Public Service and the Basic Act of Intercultural Education, which did not include the right to organize and bargain collectively. Only 6.6 per cent of public employees were unionized and had the formal right to bargain collectively. Through new decrees, the Government was preventing unions from expressing their fundamental functions. The right to deduct union dues had been eliminated in August 2009 by ministerial decree. In September 2009, trade union leave had been abolished and the leaders were prohibited from admission into educational institutions. Executive Decree No. 16 of June 2013 intensified governmental interference in social and union organizations and imposed financial requirements which were impossible to attain. The Decree had been denounced as unconstitutional. In May 2014, the National Confederation of Education Workers (UNE) had been notified by the Ministry of Education that it would not continue to register the new union leadership until the requirements of the Decree were met. She referred to other cases of teachers sentenced to prison for their union activities and indicated that about 1,385 teachers had been dismissed.

The Employer member of the United Kingdom took note of the problems in the application of the Convention indicated in the observation of the Committee of Experts, including the list of public servants who were excluded from the right to collective bargaining which went beyond the exclusions allowed under Article 6 of the Convention. That Article, which needed clarification, provided that the Convention did not deal with the position of public servants engaged in the administration of the State or prejudice their rights or status in any way. Paragraph 172 of the 2012 General Survey concerning the fundamental Conventions referred to the need to distinguish between public servants who might be excluded from the scope of the Convention, and all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. Examination of the observation of the Committee of Experts revealed that there were different views on that distinction. It was a matter for the Government to decide, as the employer of public servants, whether to bargain collectively with public servants engaged in the administration of the State. Concerning the need for clarification, the Standards Review Mechanism should be implemented as a matter of urgency.

An observer representing the Confederation of University Workers in the Americas (CONTUA) indicated that, according to official statistics, some 185,000 public sector workers had been dismissed between June 2008 and June 2012, and that the figure was still rising. The dismissed workers included hundreds of union leaders and militants who, under various pretexts, had been denied their right to represent the workers and to engage in trade union activities. In fact, they had been dismissed simply for carrying out their union duties. Freedom of association was being systematically violated by repeated anti-union dismissals in the public sector. He cited specific examples of union leaders being dismissed, adding that, to do so, the Government had resorted to a legal device known as “compulsory resignation”, a euphemism for their arbitrary dismissal. The situation was liable to deteriorate even further in the months ahead because the Government was planning to adopt a new Labour Code that had not been discussed with the trade unions. Moreover, some of the acquired rights of public servants had been removed recently, even though they had been passed into law. He called for urgent action in the form of a direct contacts mission to promote social dialogue, resolve industrial disputes in accordance with the law, halt the dismissal of union leaders and create machinery for resolving current and future disputes.

The Government member of the Plurinational State of Bolivia supported the statement made on behalf of GRULAC and welcomed the Government’s efforts to support and strengthen the exercise of labour rights by workers and trade unions. The alignment of substantive labour standards with the new Constitution adopted in 2008 was a process which was accompanied by a series of social measures to benefit workers and society as a whole. It was significant that the measures and actions carried out by the Government had contributed to the establishment of new trade unions in recent years. The request for ILO technical assistance regarding labour law reform was important in bringing national standards into line with workers’ fundamental rights and promoting measures of equality and equity in full cooperation with the social partners.

The Worker member of the United States said that the regressive labour reform, which had begun in 2007 concerning public sector workers, now risked extending into the private sector, as was evidenced by the proposed new Labour Code. That proposal incorporated regressive legislation that had greatly reduced the collective bargaining rights, practices and coverage in the public sector over the last seven years, directly contradicting the overall observations and recommendations of the Committee on Freedom of Association and the Committee of Experts. Compared to the terms of Convention No. 98, the provisions of the draft law: (1) did not adequately safeguard and protect the exercise of freedom of association, the right to organize, bargain collectively and take collective action, such as strikes, and did not provide for sanctions against employers to prevent repeat offences; (2) failed to provide protection against acts of anti-union discrimination and to extend the right to collective bargaining to different classes of workers; (3) failed to penalize employers or public authorities which practiced or promoted acts of anti-union interference, although it equipped those who sought to interfere with union organization; (4) reduced union autonomy by setting lengthy and excessive financial and bureaucratic requirements to create and register unions and denied due process in legal status procedures; (5) eliminated the right to strike in the public sector and declared sympathy strikes to be illegal, while expressly precluding the right to voluntary negotiation; and (6) did not include the workers’ input despite the Government’s claim to have consulted the social partners pursuant to the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). He requested ILO assistance in ensuring that civil society had the requisite time and expertise to evaluate those proposals.

The Worker member of Brazil said that the case of Ecuador before the Committee provided the opportunity for an international tripartite discussion. The classification of public servants as workers engaged in the administration of the State was an old definition which, in the case of Ecuador, removed them from the scope of labour law and placed them under administrative law. The legislation that governed public servants did not recognize their right to organize or to engage in collective bargaining. According to the ILO General Survey of 2013 on labour relations (public service) and collective bargaining in Ecuador, public employment accounted for 10 per cent of the workforce (nearly 600,000 workers). Of those, 125,000 were manual workers and only 40,000 belonged to a trade union. The other 475,000 were career public servants, organized in employees’ associations, and public servants on casual service contracts and other forms of precarious employment, which implied that only career public servants were members of branch federations and confederations, and that most of those workers could not legally belong to another organization. The figures showed that barely 6.6 per cent of public workers to date were unionized and had a formal right to engage in collective bargaining. It also meant that already constituted organizations, whether unions or associations, had been prevented from fulfilling their mandate of defending the rights of their members. That policy was reflected in the adoption of provisions that ruled out the possibility in practice of establishing independent organizations, in arbitrary interference in the exercise of that right, in the promotion of the establishment of parallel workers’ organizations, in the compulsory dissolution of certain workers’ organizations, or in the indirect obstruction of organizations’ activities, for example through changing check-off criteria or refusing to provide premises or authorize the participation of workers in meetings and other union activities during working hours. Executive Decree No. 16 of June 2013 issuing the regulations for the operation of a consolidated information system for social and citizens’ organizations and Ministerial Order No. 130 of August 2013 issuing regulations for labour organizations denoted a tightening of government control in social organizations in general, and in workers’ organizations, in particular. Hence, there was a need for a direct contacts mission and for the establishment of a standing dialogue forum for dialogue to ensure a fairer future and the full participation of all Ecuadorian workers.

The Worker member of the Bolivarian Republic of Venezuela emphasized that he supported the claims of the Ecuadorian workers who had been unjustly dismissed. Similarly, he offered the support of the Venezuelan workers in drafting the new Labour Code, which should be an instrument arising from social dialogue that acknowledged the aspirations of the Latin American working class. Finally, he stated his willingness to create bridges of communication with the Government.

The Government representative welcomed the support from Costa Rica as coordinator of the 34 countries that comprised GRULAC. She also thanked the delegations that had expressed their intention of sharing information on subjects related to Convention No. 98. The Government fully concurred with the Committee of Experts’ statement in paragraph 31 of the introduction to its 2014 report to the effect that “its opinions and recommendations are non-binding, being intended to guide the actions of national authorities” as they held a “persuasive” value, and it recognized that the Committee’s opinions did indeed provide valuable guidance even though they were non-binding. With regard to the comments she had heard, particularly from the Worker members, during the Constituent Assembly in charge of preparing the 2008 Constitution, the Ecuadorian people’s objective in issuing Constituent Resolutions Nos 002, 004 and 008, which were at the root of the complaints against Ecuador, was not concerned with the trade union movement or with collective bargaining in the public sector, but was rather intended to prevent the continuation of the abusive practices of certain minority higher-level workers’ organizations which were the source of inequality among the vast majority of Ecuadorian workers. Ecuador was engaged in full discussion of the new Labour Code, the first draft of which had been submitted to the National Assembly on 1 May 2014 in commemoration of Labour Day. The purpose of the new Code, which had been drafted in cooperation with the ILO, was above all to introduce labour standards that corresponded with present-day realities and in greater conformity with the international standards ratified by Ecuador. The desire of employer and worker representatives desire to be more directly involved in the discussion would be passed on to the country’s labour authorities, which were open to dialogue. The Government had responded to the appeal by the social partners with a readiness to listen to what they had to say and felt strengthened by the discussion in the Conference Committee. It therefore did not consider that it had been the object of criticism, but rather that it had been party to the democratic exercise of tripartite dialogue. In keeping with the transparent approach that the country had adopted in the process of reform and in its efforts to improve its social policies, in general, and its labour policies, in particular, she invited a new ILO technical cooperation mission to visit Ecuador, as it had in 2011.

The Worker members thanked the Government representative and other speakers. The case was long-standing and serious, as evidenced by the violence against trade unionists and by the growing trend to criminalize the exercise of trade union rights. This year again, the Committee of Experts had noted multiple cases of violations of trade union rights in Ecuador, in both the private and public sectors: many unions had been eliminated, union leaders dismissed, collective representation cancelled and measures were practiced which tended, in fact, to destroy the free and pluralistic trade union movement. It was urgent to oppose the new draft Labour Code which, if passed as it was, would eliminate trade union action and the right to collective bargaining. The Government needed to stop continuing on that path and engage in a constructive dialogue with those concerned, in particular with trade unions, whose rights and freedoms in training, operation and administration were re-established. It was essential that technical assistance from the Office, as it had requested it. In this regard, the Worker members agreed with the suggestion of the Employer members to propose a direct contacts mission. Time was pressing since the adoption of the new Labour Code was scheduled for the end of August 2014.

The Employer members made the following observations: (a) protection against acts of discrimination required specific legislation; (b) the legislation did not provide for penalties for acts of discrimination or interference in the public sector; (c) Decree No. 1406 established wage ceilings in the public sector and excluded certain issues, which went beyond the provisions of ILO Conventions; and (d) within the framework of Ministerial Order No. 0080 and Order No. 1551, the determination of the abusive nature of clauses in collective agreements in the public sector should be carried out by the judicial authorities. Those issues required legislative reforms, which should be undertaken adopting an integrated and systematic approach, on a tripartite basis, in consultation with the most representative workers’ and employers’ organizations and in compliance with ILO Conventions. The new Labour Code should specify the requirement to hold consultations with the most representative groups of employers and workers, especially for amendment of the legislation. Those consultations should be real and effective, and merely communicating the bill to the organizations was not enough. The Employer members did not share the Committee of Experts’ opinions with respect to the following points: (a) the restrictive interpretation of Article 6 of Convention No. 98 which, according to the Employer members, allowed governments to exempt specific public officials from the application of the Convention; and (b) section 229 of the Labour Code respecting the submission of draft collective agreements by minority trade unions should not be amended, as the provisions of Conventions Nos 87 and 98 did not set thresholds in that respect. They thanked the Government for accepting a direct contacts mission to address issues related to Convention No. 98 and emphasized the need to amend the corresponding legal provisions comprehensively and systematically in tripartite consultations with the most representative workers’ and employers’ organizations in order to respond to the observations of the Committee of Experts on compliance with Convention No. 98. The Government was also asked to provide information on progress made to the next meeting of the Committee.