Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

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



A Government representative, referring to the earthquake that had occurred on 16 April 2016 and its serious consequences, said that the Government had given priority to the region in question and had delivered human, material and financial resources to the affected areas and population, and for this reason it had not been in a position to send an accredited delegation from the capital and had provided explanations to the secretariat. Ecuador had ratified all international human rights instruments and 61 ILO Conventions, including the eight fundamental Conventions. The significant measures adopted, such as its policies on people with disabilities and their placement in employment, the fight against child labour, particularly its worst forms, the reduction of extreme poverty and the improved distribution of wealth, had enabled the country to set an example through its achievements in such areas. The 2008 Constitution was based on the ancestral Andean philosophy of “Buen Vivir” (good living), which gave priority to the human being over capital. It guaranteed the rights of workers, including freedom of association. With a view to updating the Labour Code, which dated from 1938, the Act on labour justice and the recognition of household work had been adopted and entered into force on 20 April 2015. The Act took into account several of the recommendation of the ILO technical mission which visited Ecuador from 26 to 30 January 2015, following an invitation from the Government. The Act provided for: (i) the elimination of types of recruitment that reduced labour stability; (ii) the adoption of measures to eliminate all forms of discrimination, whether direct or indirect, affecting workers, as a result of which any dismissal of trade union leaders or pregnant or breastfeeding women would be without affect; (iii) the democratization of worker representation, which meant that workers had the right to freely elect persons to represent them on enterprise committees, whether or not its members belonged to a trade union; (iv) the implementation of universal social security; and (v) the repeal of the provision that required authorization for foreign workers to work in Ecuador. Other issues addressed by the ILO technical mission and raised by the Committee of Experts were related to the draft amendments to several constitutional rules. Those draft amendments, in relation to which the Constitutional Court had issued a favourable ruling, provided for, inter alia, the removal of Article 229(3) of the Constitution, which provided that “workers from the public sector shall be subject to the Labour Code”. The removal of this provision had been proposed with a view to ensuring equal treatment for public employees, so that as from the entry into force of the new rules, all public employees would be covered by the Basic Act on the Public Service (LOSEP), which provided greater benefits than the Labour Code. The Committee of Experts had referred to the amendment of Article 326(16) of the Constitution, which provided that only the private sector had the right to engage in collective bargaining. In this regard, she emphasized that in the public sector employers did not make a profit, and that collective agreements had no meaning in balancing employer-worker relations. Furthermore, section 221(2) of the Labour Code provided that public sector employees could negotiate collective agreements through the establishment of a single central committee comprising over 50 per cent of such workers. She thanked the Government of Uruguay for having offered to share information on experiences and good practices in this regard.

Regarding the observation of the Committee of Experts, which indicated that the responsibility of the Ministry of Labour to determine the abusive nature of collective agreements in the public sector should be transferred to the judicial authorities, she emphasized that Ministry Labour Orders Nos 76 and 155A guaranteed employment equality in state institutions, ensuring that workers enjoyed the benefits granted to them by the law, establishing a procedure to revise collective agreements and providing equal support to employers and workers. If mediation failed, conciliation and arbitration tribunals intervened. That process would be distorted if the matter was referred to the judiciary. Finally, she emphasized that the commitments undertaken by the Government when it concluded collective agreements as an employer had material and legal limitations that were directly related to budgetary availability, which made it impossible to give effect to abusive clauses, also because all agreements that favoured minorities created discrimination in the enjoyment of fundamental rights by the vast majority of public sector workers. Ecuador had shown its will comply with international labour standards, as concluded by the ILO technical mission the findings of which had already been mentioned, and to adopt new labour laws that strengthened the protection of workers’ rights.

The Employer members recalled that the Convention had been ratified by Ecuador in 1959 and examined by the Conference Committee on three occasions, most recently in 2014. Regarding the failure to recognize the right of certain public sector workers to engage in collective bargaining, they noted with concern that the Government had emphasized that, while public employees enjoyed the right to organize, they did not have the right to engage in collective bargaining, which constituted a violation of Article 4 of the Convention. According to the findings of the ILO mission of January 2015, the draft constitutional amendments, which had since been implemented with the aim of unifying the regulations governing public servants, established that the wage earners previously subject to the Labour Code would be governed by the LOSEP, in the same manner as the other public servants who enjoyed the right to organize but were not entitled to engage in collective bargaining. In that regard, they supported the call by the Committee of Experts to amend the LOSEP and other administrative laws to bring them into line with the Convention. Concerning the requirement of a level of representativeness for participation in collective bargaining that was deemed excessively high by the Committee of Experts, they emphasized that, due to the absence in the Convention of a specific provision on the levels of representativeness for collective bargaining, national legislation prevailed, within the parameters of rationality and objectivity and with the prior determination of the levels of representativeness required for collective bargaining. The system in force in Ecuador granted preferential rights to the most representative trade unions, which prevented abusive practices and provided guarantees for both employers and workers. On that point, they considered that it would not be possible to recommend the amendment of the legislation in isolation, without assessing the impact that it might have on the rules governing collective bargaining as a whole. Concerning the limitations on collective bargaining in the public sector, the Employer members agreed with the Committee of Experts that such limitations were in violation of the Convention, and they supported the request for the Government to take the necessary measures to restore the right to collective bargaining regarding all issues that affected the employment and working conditions of public servants covered by the Convention. Only the judicial authorities could determine whether some agreements were abusive. They also supported the request for the Government to provide information and take the measures called for by the Committee of Experts, and they encouraged the social partners to avail themselves of article 23(2) of the ILO Constitution.

The Worker members expressed their solidarity concerning the recent earthquake. They expressed concern at the Government’s failure to grant accreditation for the Conference to any worker representatives, which was a violation of the ILO Constitution. Attacks against public sector trade unions had begun in 2008 with the adoption of constitutional amendments which placed a ceiling on public sector pay, limited compensation for termination of the employment relationship, and empowered the Government to review the clauses of collective agreements unilaterally. Furthermore, the Basic Act on Public Enterprises (LOEP) and the LOSEP of 2010 restricted the trade union rights and the right to collective bargaining and to strike for public sector workers. Despite the repeated comments of the supervisory bodies, which emphasized the various violations of the Convention and requested that the situation be remedied, as well as the recommendations of the ILO mission of January 2015, the situation had only deteriorated. Of more concern was the fact that in December 2015, without consulting the unions, and following the violent repression and detention of peaceful protestors, regressive constitutional amendments had been adopted which completely eliminated the right to collective bargaining in the public sector by reclassifying public sector wage earners as public servants as a result of which collective bargaining was confined to the private sector. Similarly, although the right to strike was generally recognized in the public sector, it was prohibited in a large number of sectors, an exclusion which went far beyond the definition of essential public services established by the ILO supervisory system. In addition, as indicated by the Committee of Experts, other issues still needed to be addressed: (i) the need to amend section 221 of the Labour Code so that, where there was no organization with over 50 per cent of the workers as members, minority trade unions could, either alone or jointly, negotiate on behalf of their members; (ii) the lack of adequate protection against anti-union discrimination, including practices such as the procedure known as “compulsory purchase of redundancy”, which allowed the public administration, through the payment of compensation, to unilaterally remove public servants without having to indicate the grounds for their termination; and (iii) the empowerment of the Ministry of Labour to determine the abusive character of collective agreements in the public sector, a decision which should lie within the competence of the judicial authorities. The Worker members urged the Government to meet the trade unions as soon as possible to identify solutions to ensure that the Constitution and national laws were in full conformity with the Convention.

An observer representing the International Organisation of Employers (IOE) and the National Federation of Chambers of Industries of Ecuador referred to the recent constitutional amendments adopted in December 2015, according to which public sector workers were no longer covered by the Labour Code, but by the LOSEP. This Act did not include collective bargaining mechanisms, which was contrary to Article 4 of the Convention. The Government should align its legislation with the Convention, in consultation with the social partners within the framework of an open dialogue to find solutions adapted to the national situation. This would encourage and promote the development and use of collective bargaining mechanisms for employment conditions between the public authorities and organizations of public servants. While international standards did not contain requirements with regard to the minimum number of workers to start a collective bargaining process, the legislative provisions in Ecuador were aimed at ensuring the representativeness of the parties to negotiation. Any amendment envisaged should, in any case, take into account the institution as a whole. Global solutions should be sought which went beyond the mere amendment of isolated provisions. ILO technical assistance would help to find a way of harmonizing the constitutional provisions with the laws governing public servants.

An observer representing Public Services International said that the absence of a worker delegate at the Conference illustrated the Government’s unilateral approach in decision-making. In 2014, the Government had been called to appear before the Committee due to persistent and systematic violations of the Convention. Since 2007, the country had been backtracking on labour matters, with the State, as an employer, abandoning the fundamental principles of international labour standards, especially freedom of association, tripartism and social dialogue. The constitutional reform undertaken by the Government on 3 December 2015 had put an end once and for all to collective bargaining in the public sector, culminating a systematic process which began in 2008. The constitutional reform, through one of one of its transitional provisions, left workers classified as public sector wage earners in legal uncertainty until the reform came into force, although providing that they would not lose their individual and collective rights. He indicated, however, that this transitional measure was not viable and that public sector wage earners, represented, inter alia, by the National Federation of Provincial Council Wage Earners of Ecuador, would indeed lose their acquired rights. This showed that the reform in question represented a major retrograde step in the history of Ecuador. He added that the Trade Union of Workers of the Pichincha Provincial Government was the target of a range of Government strategies to neutralize it. He referred by way of illustration to the manoeuvres by the Ministry of Labour to prevent that trade union from participating stoppage of 13 August 2015 to protest against the constitutional reform process. Despite the Government’s attempts to eliminate certain trade union organizations and collective bargaining, the organizations affiliated to Public Services International, the National Union of Educators and the United Workers Front, were still operational.

An observer representing Education International (EI) said that the situation of public servants had deteriorated since 2014. The Government had not implemented the recommendations of the supervisory bodies or of the ILO technical mission, primarily relating to the teachers’ union, the National Union of Teachers (UNE) with the exception of creating a national consultative labour council. Teachers were covered by the LOSEP and the Basic Act on Intercultural Education and therefore did not enjoy the right to freedom of association or the right to collective bargaining. Moreover, the rights of the country’s trade unions, such as the deduction of union dues or leave for trade union activities, were restricted. There was constant harassment of trade unionists and social protest was criminalized, while union leaders were taken to remote locations and administrative proceedings were brought against them. The executive boards of trade unions were not being registered, which limited their ability to receive dues from members and national or international donations. The Government had also confiscated union funds. An initiative to reform the Basic Act on Intercultural Education had been introduced to allow for better living conditions for teachers through collective bargaining. The Government was urged to respect international labour law and guarantee social dialogue and collective bargaining.

The Government member of Mexico, speaking on behalf of the group of Latin American and Caribbean (GRULAC) countries, expressed solidarity following the earthquake that had devastated the country in April 2016. He emphasized the systematic progress made in labour legislation, particularly with respect the insertion into employment of persons with disabilities; the “My First Job” programme; the eradication of the worst forms of child labour; and the implementation of the “Dignified Wage” to cover the basic shopping basket. In addition, the Labour Justice Act had been in force since 20 April 2015 and contained provisions such as “dismissals without effect” to protect union leaders in their functions as representatives of workers’ organizations. He also drew attention to the significant number of trade unions registered over the last decade (1,001) which demonstrated the existence of freedom of association. Moreover, it should be emphasized that the recently adopted constitutional amendment expressly recognized both the right of public servants to organize in defence of their interests and the right to strike. Implementing provisions were now being drafted. In conclusion, he expressed confidence that all outstanding issues before the Committee of Experts would be duly addressed, with the vital assistance of the ILO, and that Ecuador would continue to adopt labour policies that were in conformity with international labour standards.

The Government member of Uruguay endorsed the statement made on behalf of GRULAC and reiterated her Government’s readiness to collaborate with Ecuador, particularly with regard to collective bargaining in the public sector, within the framework of a South–South collaboration process promoted by the ILO.

An observer representing the Confederation of University Workers in the Americas (CONTUA) said that the Government restricted the right of public sector workers to freedom of association, collective bargaining and to strike. In Ecuador, practices persisted known as the “compulsory purchase of redundancy”, which was euphemism, and a linguistic and legal contradiction used to conceal over 15,000 discriminatory dismissals in the public sector, many of which concerned trade union leaders. Moreover, the Government hoped to amend the LOSEP and LOEP in the near future, without consulting trade union organizations. Union leaders were systematically attacked and prevented from carrying out their duties. The Government was urged to talk to the social partners and amend polices that denied people their rights. He wished to draw particular attention to the situation of the Andean Simón Bolívar University, in Ecuador, which was undergoing a difficult period concerning respect of the principle of the independence of the universities. In this connection, workers belonging to trade unions affiliated with CONTUA were systematically attacked to prevent them from exercising their rights in a context of respect for freedom of association. The independence of universities and trade unions were two pillars of social democracy which, in this specific case, were being threatened. Due to the commitment with which they performed their tasks, workers were victims of threats, interventions and interference aimed at restricting their independence and rights. In conclusion, he called for a tripartite mission to visit the country on an urgent basis.

The Government member of Cuba endorsed the statement made on behalf of GRULAC, especially the expression of solidarity with the Government and people of Ecuador following the earthquake that had occurred in April 2016. She appreciated the detailed information provided by the Government concerning the application of the Convention and recognized the achievements of the citizens’ revolution in its efforts to guarantee the right to work and to strengthen inclusion and social protection. She welcomed the recognition by the Committee of Experts of the progress made in the labour legislation in the country. The sustained increase in the registration of new trade union organizations demonstrated the Government’s efforts to guarantee the full exercise of the right to freedom of association. These efforts should be supported by technical assistance from the ILO, especially during the difficult time that the country was going through. She hoped that the focus in this case would be on the cooperation which should characterize relations between the ILO and its member States.

The Worker member of the United States said that the sustained attack on the labour rights of public sector workers had been a long-standing issue in Ecuador. Many parts of the world, including parts of the United States, had sought to reduce or eliminate public sector collective bargaining. In Ecuador, this had been a consistent policy of the Government since 2008. In past years, the Committee on Freedom of Association and the Committee of Experts had noted the measures taken by the Government to limit collective bargaining rights in ways that were inconsistent with the Convention. The Committee of Experts had noted with concern: (i) the persistent problems faced by public sector workers, especially those in education; (ii) the measures introduced in the new Constitution to reduce public sector collective bargaining rights, which were inconsistent with the Convention; (iii) the exclusion of certain public sector workers from the guarantees laid down in the Convention; and (iv) the provisions of the LOEP and of the LOSEP. He hoped that the Committee would adopt clear conclusions on this case, despite the absence of Workers’ delegates from the country. The Committee of Experts had requested the Government to extend the right to collective bargaining to teachers, municipal workers, public services and air transport workers. Despite the consistent comments of the Committee of Experts concerning the exclusion of these workers from the application of the Convention in Ecuador, the Government had amended the Constitution and had adopted laws against the inclusion of public sector workers. This year, the Committee of Experts had clearly indicated that the Convention applied to the following public servants: teachers, municipal employees, public enterprise employees and air transport personnel. The Government should extend the right to collective bargaining to these categories of workers as required by the Convention. He called upon the Government to ratify the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), in order to provide specific coverage for officials involved in the administration of the State.

The Government member of the Plurinational State of Bolivia endorsed the statement made by GRULAC and conveyed a message of solidarity to the Ecuadorian people following the earthquake that had occurred in April 2016. The Ecuadorian legislative process had achieved significant progress in the field of labour rights since 2007. She applauded the adoption in April 2015 of the Act on labour justice and the recognition of household work, which protected trade union members from summary and unjustified dismissal. She emphasized that the amendment to the Ecuadorian Constitution, which explicitly recognized the right of public servants to organize in defence of their interests, and the right to strike, was in the process of implementation. Progress in relation to wages in Ecuador included the increase in the statutory minimum wage of workers by over 100 per cent over recent years, and the introduction of a living wage (salario digno) to cover basic living costs. There had also been an increase in the number of workers registered with the social security system. The country was continuing to develop labour policies that were in line with its national legislation and it would surely continue to share its best practices. In conclusion, she hoped that the Committee would appreciate the progress made by Ecuador taking into account the country’s priorities in the present economic situation.

The Employer member of Mexico began by expressing his condolences and solidarity with the Ecuadorian people in view of the recent earthquake. He questioned the way in which the Committee of Experts was once again addressing the question of the representation of workers for the purposes of collective bargaining. The comment made by the Committee of Experts was excessive in considering that, when the majority of workers did not wish to exercise the right to conclude a collective agreement, any group of workers, irrespective of their number, could do so by themselves or through a trade union. The right to organize and collective bargaining were not obligations, but rights that workers could choose to exercise or not. The Supreme Court of Ecuador had ruled that a collective agreement in a workplace would be extended to workers who were not members of the organization that had concluded the agreement. According to the criteria of the Committee of Experts, Ecuador should amend its legislation. He considered that in such a scenario, everyone was a loser: (i) workers ran the risk of their trade union representation becoming fragmented, and, if a minority of workers engaged in collective bargaining and the outcome was then applied to the other workers, the exercise of the right to collective bargaining of those who had not participated was impaired; (ii) governance was affected, and problems increased in the registration of collective labour agreements; (iii) employers could be obliged to negotiate a variety of collective labour agreements within the same enterprise, which would complicate the administration of human resources and have an impact on costs and industrial relations. If majority representation in any form of social organization was a democratic principle, the concept of the “bargaining agent” acknowledged by the Committee of Experts and the Committee on Freedom of Association as a suitable measure, should not be eliminated, nor should Ecuador be asked to remove the majority principle from its legislation without considering the consequences.

The Worker member of Argentina referred to the unacceptable interference by the Government of Ecuador in the fundamental right to organize and bargain collectively of public employees not engaged in the administration of the State. It was an issue that had already been examined by the ILO’s supervisory bodies and had prompted a technical mission to Ecuador in January 2015. As a result of the entry into force of the Constitution approved in 2008, the adoption of constituent amendments and the enactment of new legislation on public enterprises and employees, the labour rights of workers in the public sector in Ecuador had been seriously prejudiced. Executive Decree No. 813 of 2011 provided that public employees could be dismissed through the process known as “compulsory purchase of redundancy”. In the first six months following the Decree’s entry into force, the Government ordered the dismissal of 5,000 public sector workers without any grounds being given (see Committee on Freedom of Association Case No. 2926). The so-called “compulsory purchase of redundancy” was a violation of the Convention on two counts: not only was it used in a discriminatory manner against public employees who were members of trade unions to decimate the trade union movement or encourage the formation of organizations close to the interests of the Government, but it also undermined the stability clauses included in collective agreements. Under the Basic Act on the Public Service, workers were denied their right to freedom of association, to strike and to bargain collectively. In addition, the Act and the legislation applicable to employees in public enterprises and in the education sector provided no protection against anti-union discrimination or interference. The draft amendment to the Constitution was also designed to achieve the complete eradication of freedom of association and collective bargaining in the public sector, by proposing that “wage earners” in public enterprises be brought under the labour legislation governing the public sector, thereby denying the right to collective bargaining of the last category of public employees still entitled to do so. The legislation did not allow State “wage earners” to negotiate their wages, even though their conditions of employment were governed by the Labour Code.

The State was increasingly interfering in collective bargaining, where it now had the unilateral power to review public sector collective agreements on the grounds that of the possible abusive nature of clauses of agreements. Both the Committee of Experts and the Committee on Freedom of Association had emphasized that such review would be admissible only if the determination of the alleged abusive nature of such clauses was made by the judicial authorities. In conclusion, he called on the Committee to urge Ecuador in the strongest terms to comply with the observations formulated time and again by the ILO supervisory bodies.

The Government representative expressed thanks for the various interventions and the support from GRULAC, and agreed with the position outlined on several occasions concerning the method and criteria for the selection of cases. She also welcomed those delegations which had expressed their support and intention to share information and good practices on issues relating to the Convention. The non-attendance of a delegation from the capital was due to a situation of force majeure which had hit Ecuador and continued to affect it; and fell within the scope of the Union Nations General Assembly Resolution 56/83. Regarding the minimum percentage requirement for collective bargaining, she said that collective agreements applied to all workers, whether or not they were members of a labour organization, whether a trade union or a works council. Therefore, the requirement that the organization or group of organizations which were to negotiate collectively should represent over 50 per cent of the workers with stable contracts was based on the principle of representativity. With regard to the alleged penalization of strikes, it needed to be taken into account that the right to strike was a principle enshrined in Article 326 of the Constitution, and was therefore not punishable by law. However, as in the laws of many countries, the Constitution established limits on stoppages in basic services, defined essentially by the non-infringement of other peoples’ rights. Turning to the alleged acts of anti-union discrimination in access to employment, Article 11(2) of the Constitution provided that all persons were equal and enjoyed the same rights, duties and opportunities, and were therefore protected against any form of discrimination. The constitutional rule, which was applicable in possible cases of anti-union discrimination, was given effect by section 452 of the Labour Code, which sought to guarantee the exercise of the right to organize by establishing an increased compensation for summary dismissal, as well as guaranteeing the continuation of the process of forming the labour organization that was being established. The purpose of removing Article 29(3) from the Constitution was to ensure and to unify the legal framework protecting workers, thus ending the hateful distinction between wage earners and public servants which divided and differentiated physical and intellectual effort. Its objective was the protection of all public servants so that, with the entry into force of the new regulations, they would all be covered by the LOSEP, the benefits of which were broader than those of the Labour Code. They included the right to annual leave of 30 days, which was double the 15 days provided by the Labour Code. On the establishment of trade unions, she recalled that, while 2,178 worker organizations had been registered between 1961 and 2007, 1,001 had been registered since 2007. Those figures were a clear indication of the opportunities to organize in the country.

The intention of the Constitutional Assembly with regard to the reforms had not been to negatively affect the trade union movement or collective bargaining in the public sector, but to avoid the perpetuation of the abusive practices of certain minority higher-level workers’ organizations, which generated inequality for the vast majority of Ecuadorian workers by accruing disproportionate privileges and benefits. A key point to bear in mind was that little more than a year before, the Act on labour justice and the recognition of household work had entered into force, which not only updated several provisions of the Labour Code, but also extended labour protection to vulnerable actors in the tripartite relationship. The main aim of the Act was to bring labour legislation into line with reality and make it as consistent as possible with the Conventions ratified by Ecuador. She welcomed the 2016 report of the Committee of Experts, which indicated that “its opinions and recommendations” were “non-binding, being intended to guide the actions of national authorities” and that they were “persuasive” in nature. She agreed with the comments of the Committee of Experts on the value of opinions and recommendations and considered that, although their application was not mandatory, they provided precious guidance to be taken into account. Lastly, she said that she had taken due note of the statements made by the representatives of the Employers and Workers and that their messages would be forwarded to the Ecuadorian labour authorities, who maintained an open attitude to dialogue, which they considered as the basis for good tripartite relations. Ecuador had appeared before the Committee willing to listen to the social partners and felt strengthened by the discussion that had taken place. It did not take the view that it had been subjected to criticism, but to a democratic exercise of tripartite dialogue, even in the face of the adverse conditions resulting from a natural phenomenon beyond the State’s control.

The Worker members said that the Government had shown neither consideration nor respect for the rights of workers in the public sector, particularly the fundamental right to collective bargaining, and for the ILO’s supervisory system. Although it had on several occasions received guidance on compliance with the Convention, as well as technical assistance from the Office, the Government had chosen to do precisely the opposite. Furthermore, in 2016 the Government had not appointed any workers to attend the Committee to express their views on the case, which was a clear violation of the ILO Constitution. Ecuador was far from complying with the Convention. The main amendments to the Constitution and labour laws had been adopted without consulting the trade unions. When trade unions and workers took action to express their opposition to the reforms, they had been met with teargas and in many cases had been detained or imprisoned. The Worker members were very worried about the serious anti-union climate in Ecuador and called on the Government to immediately take the necessary measures to bring an end to the constant attacks on workers and trade unions. They also urged the Government to meet the trade unions, which had already drafted and submitted specific proposals on how to comply with the Convention. Taking fully into account the observations of the Committee of Experts, they urged the Government to engage in a process of social dialogue to: (i) establish a clear timetable and process for bringing the Constitution into line with the Convention; (ii) amend the LOSEP and the LOEP to ensure that all workers, with the possible exception of persons who exercised authority in the name of the State, enjoyed the right to organize and bargain collectively in accordance with the Convention; (iii) amend section 221 of the Labour Code so that, when there was no union whose membership comprised more than 50 per cent of the workers, minority trade unions could, on their own or jointly, negotiate on behalf of their members; (iv) bring an end to the practice known as the “compulsory purchase of redundancy”; and (v) repeal Ministerial Orders Nos 80 and 155, which allowed clauses in public sector collective agreements to be declared “abusive”, a power that should only be exercised by the judicial authorities. They also urged the Government to cease all acts of violence and intimidation against trade unionists, refrain from making statements that discredited trade unions and accept a high-level tripartite mission to examine the issues raised by the Committee of Experts in its report and to devise a plan to address them without delay. Finally, in view of the seriousness of the case and the Government’s failure to appoint Workers’ delegates, they called for the conclusions on this case to be included in a special paragraph of the Committee’s report.

The Employer members thanked the Government for the information it had provided. In their view, collective bargaining could not be replaced on the grounds of greater benefits would accrue. They requested the Government to provide updated information on the situation regarding the amendments to the Constitution and on their impact on the legal aspects of the case. Before amending the law in any way and to ensure that any legal texts adopted complied with the approved constitutional amendments and the Convention, they called on the Government to launch a consultation process with the most representative employers’ and workers’ organizations. They reminded the Government that it could in any case avail itself of ILO technical assistance to conduct such consultations and the subsequent legislative reform.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee welcomed the information provided by the Government and asked it to provide additional information on the state of the situation in relation to the constitutional amendments and on their impact on the legal aspects of the case.

Taking into account the discussion of the case, the Committee requested the Government to:

• - initiate a process of consultation with the most representative employers’ and workers’ organizations prior to any amendment to the law, in order to bring all the relevant legislations into compliance with Convention No. 98;
• - amend the LOSEP and LOEP so as to ensure that all workers, with the possible exception of persons engaged in the administration of the State, enjoy the right to establish trade unions and to bargain collectively in accordance with the Convention;
• - repeal Ministerial Orders Nos 00080 and 00155 which allow clauses in public sector collective agreements to be qualified as abusive, an authority which should come only within the purview of the Judiciary;
• - accept a programme of ILO technical assistance in conducting the consultations referred to above and the subsequent legislative reform;
• - ensure that collective bargaining can be exercised in a climate of dialogue and mutual understanding.

The Committee deeply regrets that the Government failed to accredit a tripartite delegation to the Conference to enable a tripartite delegation to register for the discussion of its case before this Committee. The Committee refers the Government to article 3 of the ILO Constitution.

The Government representative took due note of the Committee’s conclusions and said that they would be sent to the Government for consideration.