Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

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

The Committee notes the Government’s reply to the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), the Ecuadorian Confederation of Free Trade Unions (CEOSL), the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation of Education Workers (UNE) and Public Services International (PSI) in Ecuador of 2022, and the Government’s reply to the joint observations of the FETRAPEC, PSI in Ecuador and the United Workers’ Front (FUT) of 2023. The Committee also notes the detailed joint observations of PSI in Ecuador, the CEOSL and FETRAPEC received on 31 August 2024, and the observations of the CEOSL received on 5 October 2024, and notes the Government’s reply in this respect. The Committee notes that these observations deal in detail with issues that the Committee is examining in the present comment and allege acts of anti-union discrimination, including anti-union dismissals, blacklisting and partial compliance with rulings ordering the reinstatement of trade union leaders. The Committee requests the Government to provide its comments on these allegations.

Technical assistance, direct contacts mission requested by the Committee on the Application of Standards of the International Labour Conference (hereinafter the Conference Committee) in the context of the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Committee notes that, when examining the application of Convention No. 87 by Ecuador in June 2024, the Conference Committee once again addressed issues that have a direct impact on the capacity of workers to engage in collective bargaining of their terms and conditions of work and consequently on the application of the present Convention. The Conference Committee expressed concern that the Government had not yet accepted the direct contacts mission requested in 2022 and had not had recourse to ILO technical assistance for the effective application of all the recommendations made by the Conference Committee. The Committee firmly trusts that the Government will accept the direct contacts mission requested by the Conference Committee in 2022 and hopes that the direct contacts mission and ILO technical assistance will contribute to finding appropriate solutions to all the pending issues raised by the ILO supervisory bodies for many years.

Application of the Convention in the private sector

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. For over a decade, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination in access to employment. The Committee notes that the Government refers to the provisions of two Ministerial Decisions: Decision No. MDT-2017-0082, issuing regulations that guarantee non-discrimination, including during selection processes and during the existence of the employment relationship, and Decision No. MDT-2020-44 respecting discrimination, work-related harassment and/or any form of violence against women at the workplace. However, the Committee notes that the Ministerial Decisions do not contain explicit provisions guaranteeing protection against anti-union discrimination in access to employment and do not therefore address the request made by the Committee. The Committee notes the indication by PSI in Ecuador, the CEOSL and FETRAPEC that the regulations respecting harassment, violence and discrimination at work do not apply directly to discrimination against trade union leaders. Recalling that Article 1 of the Convention addresses the prohibition of anti-union discrimination at the time of the recruitment of individual workers, so that access to employment is not made subject to the condition that workers shall not join a union or shall relinquish union membership, the Committee once again emphasizes the need for provisions explicitly prohibiting acts of anti-union discrimination at the time of access to employment to be included in the legislation. The Committee requests the Government to provide information in this respect.

The Committee also notes that the trade union confederations reiterate that many trade union leaders cannot find work because employers consult the website of the judiciary, which contains publicly accessible information on labour claims, and they avoid recruiting applicants who have made claims against previous employers. They add that, in February 2024, with a view to regulating the handling of personal data and preventing discrimination based on judicial records, Regulations were issued on the handling of personal data in judicial proceedings. They indicate that, although this is a significant step forward, it is not known how many applications have been made for personal data to be kept anonymous and their outcome. The Committee requests the Government to provide information on the impact in practice of the Regulations on the handling of personal data in judicial proceedings.

Article 4. Promotion of collective bargaining. The Committee recalls that, in accordance with section 221 of the Labour Code, collective labour contracts must be concluded with the enterprise committee (one of the forms, in accordance with the Labour Code, that can be taken by trade unions in the enterprise) or, if one does not exist, with the organization with the highest number of worker members, on condition that it represents over 50 per cent of the workers in the enterprise. Emphasizing the link between the low coverage of collective agreements in the country and the restrictive requirements set out in law for participation in collective bargaining, the Committee previously emphasized the need to amend the section so that, where there is no organization that represents over 50 per cent of the workers, minority trade unions are at least able, alone or jointly, to negotiate a collective or direct agreement on behalf of their own members. The Committee notes that the Government confines itself to indicating that 68 collective agreements were concluded in the country in 2023. The Committee regrets that information has not been provided on the adoption of the measures requested or greater detail provided on the collective agreements referred to. The Committee notes the indications by PSI in Ecuador, the CEOSL and FETRAPEC that: (i) according to the data provided by the Government, between December 2023 and the middle of 2024, there were 14 collective agreements concluded in the private sector covering 6,029 workers; (ii) the majority of the agreements were revisions of pre-existing collective agreements; and (iii) information is not available on the coverage of collective agreements at the national level. The Committee once again emphasizes that, even though the requirement of representativity for signing collective agreements is fully compatible with the Convention, the level of representativity set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining, as envisaged in Article 4 of the Convention. The Committee once again emphasizes the need to amend section 221 of the Labour Code in the manner indicated and urges the Government to provide information in this respect. It also requests the Government to provide detailed information on the number of collective agreements concluded and in force in the country, and to indicate the sectors covered (including the agricultural and banana sector), the number of workers covered by the agreements and whether they are new or revised collective agreements.

Collective bargaining in sectors composed mainly of small enterprises. The Committee recalls that, in its comments on the application of Convention No. 87, it has been calling for many years for the amendment of the following aspects of the legislation, which significantly restrict the capacity of workers to organize in unions: (i) the requirement of a minimum of 30 workers to establish unions and enterprise committees; and (ii) the impossibility of establishing first-level unions composed of workers from different enterprises. The Committee noted with concern that these restrictions on the right to organize, combined with the absence of a legal framework for collective bargaining at the sectoral level, as alleged by the trade unions, appear to exclude any possibility for workers in small enterprises to exercise their right to collective bargaining. The Committee has previously requested the Government to provide information on the measures taken to promote collective bargaining in sectors of production composed mainly of small enterprises. The Committee notes that the Government refers to two Ministerial Decisions issued in 2024: (i) Decision MDT-2024-012, issuing the Regulations on labour organizations for the exercise of freedom of association and trade union independence; and (ii) Decision No. MDT-2024-080, issuing the Regulations on the presentation, negotiation and conclusion of collective labour agreements and transitional acts in the private and public sectors. However, the Government has not indicated how the Ministerial Decisions relate to the comments that the Committee has been making in the context of this Convention and Convention No. 87. The Committee notes the indication by PSI in Ecuador, the CEOSL and FETRAPEC that there are no branch collective labour agreements or accords that protect sectors in which the Government has denied the possibility to organize (which according to these unions represent over 90 per cent of the production units in the country). The Committee once again requests the Government to provide information on the measures taken to: (i) reduce the number of workers required to establish unions and enterprise committees; and (ii) enable the establishment of first-level unions composed of workers from different enterprises, in order to make collective bargaining possible in production sectors composed mainly of small enterprises.

Application of the Convention in the public sector

Articles 1, 2 and 6. Protection of workers in the public sector who are not engaged in the administration of the State against acts of anti-union discrimination and interference. The Committee of Experts and the Committee on Freedom of Association (Case No. 3347) have requested the Government to take the necessary measures to ensure that the legislation applicable to the public sector includes provisions that explicitly protect the leaders of all organizations of public servants, and not only the leaders of committees of public servants (a specific mechanism for the representation of workers in the public sector), against acts of anti-union discrimination and interference, as well as provisions establishing penalties that are dissuasive in the event of such acts. The Committee notes the Government’s reiterated indication that protection against acts of discrimination and the right to establish trade unions are set out in explicit legislative texts, both in the Political Constitution of the Republic and the Basic Public Service Act (LOSEP), which prohibits any act of discrimination against public servants. The Committee also notes the allegations made by PSI in Ecuador, the CEOSL and FETRAPEC that, in the public sector and in the context of the violence that is affecting the country, trade union leaders do not have a legislative framework that protects them from acts of discrimination in their individual recruitment or measures that guarantee their safety against threats related to the exercise of their freedom of association. The Committee once again emphasizes the importance of legislation that provides the same type of protection against possible acts of anti-union discrimination and interference for all leaders of all organizations of public servants equally. The Committee therefore once again urges the Government to take the measures indicated above and requests it to provide information in this respect.

The Committee previously noted a ruling by the Constitutional Court issued in 2020 declaring unconstitutional the compulsory redundancy purchase mechanism (under which the public administration, in exchange for the payment of compensation, could unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination), and it requested the Government to provide information on any action taken to comply with this ruling. The Committee regrets to note that the Government has not provided this information. The Committee notes the indications by PSI in Ecuador, the CEOSL and FETRAPEC that: (i) on 5 June 2024, the National Court of Justice issued ruling 10-2024, indicating that the finding that the administrative act of purchasing the compulsory redundancy of a public servant is unconstitutional, in accordance with the constitutional ruling, implies that matters return to their previous state, for which reason the effects include reinstatement of the public servant, the payment of unpaid wages; and that the public servant, in exchange, must return the total amount of the compensation for the purchase of compulsory redundancy, the value of which will be offset from the amount to be reimbursed by the public authority; (ii) in response to a petition for clarification concerning the interpretation of ruling 10-2024, two judges of the Administrative Dispute Chamber of the National Court of Justice indicated that it is only applicable in the case of public servants who have submitted an administrative dispute action that is still under consideration; and (iii) the majority of those who were dismissed did not appeal to the Administrative Dispute Chamber, and those that did saw their challenges set aside, shelved or declared in abeyance. Recalling that the trade union organizations have alleged that the compulsory redundancy purchase mechanism in the public sector was applied for at least eight years with a clear anti-union intent, the Committee once again requests the Government to provide information on any challenges brought under the 2020 ruling and ruling 10-2024 of the National Court of Justice.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. The Committee previously noted with concern that the Basic Reform Act and Ministerial Decision No. MDT-2018-0010 do not recognize the right to collective bargaining of public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee urged the Government, in consultation with the representative organizations of workers, to take the necessary measures to establish adequate collective bargaining machinery for all categories of public sector employees covered by the Convention. The Committee notes the Government’s indication that only the enterprise committee is empowered to conclude collective agreements and that for the conclusion of collective agreements it is necessary to obtain favourable budgetary certification in the public sector, as set out in the respective legislation and the Labour Code, and other related texts. The Committee notes the indication by PSI in Ecuador, the CEOSL and FETRAPEC that, during the period between December 2023 and the middle of 2024, some 22 collective agreements were concluded in the public sector and that this low number of collective agreements is a result, among other factors, of the fact that only the special committees composed of employed persons classified as manual workers may conclude collective agreements and that it is necessary to obtain favourable budgetary certification. PSI in Ecuador, the CEOSL and FETRAPEC add that: (i) in ruling No. 68-20-IN/24, handed down on 27 June 2024, the Constitutional Court set aside a challenge to find unconstitutional section 26 of the Basic Act on Public Enterprises (LOEP), which excludes public servants from collective bargaining in public enterprises (the Court found that the legislation makes a distinction between manual workers and other public servants and explicitly establishes clear differences between them, and that as collective bargaining in the public sector is only intended for workers governed by the Labour Code, the prohibition set out in section 26 of the LOEP lies within the margin of discretion of the legislator); and (ii) the final resolution of Case No. 3564-22-JP is pending before the Constitutional Court in which in the first instance and on appeal, the courts ordered the National Telecommunications Corporation to apply the Labour Code to public servants and include them within the benefits of collective bargaining. PSI in Ecuador, the CEOSL and FETRAPEC allege that two Ministerial Decisions issued in 2024 amount to a further attack on collective bargaining in the public sector, namely: (i) Decision MDT 039 on the setting of the remuneration of public servants and “workers” in public sector entities; and (ii) Decision MDT 080, which requires a favourable opinion of the Ministry of Finance for the conclusion of collective agreements in the public sector that have already been negotiated by the parties, and sets in motion a process of the unilateral revision of collective agreements and transactional acts, including the exclusion from the benefits of these agreements of workers classified as public servants. The Committee notes all these developments and once again expresses concern at the absence of recognition of the right to collective bargaining of public servants, despite the fact that many of them (public sector teachers, employees in the public health system, employees in public enterprises, municipal services and decentralized bodies, etc.) are not engaged in the administration of the State and therefore have to benefit from the guarantees provided by the Convention. The Committee once again regrets that, despite its requests, the Government has not taken specific initiatives for the re-establishment of the rights referred to above. Recalling once again that there are mechanisms that permit the harmonious coexistence of the mission of the public sector to serve the public interest and the responsible exercise of collective bargaining, the Committee once again firmly urges the Government, in consultation with the representative organizations of workers, to take the necessary measures to establish adequate collective bargaining machinery for all categories of public sector employees covered by the Convention. The Committee requests the Government to report any developments in this respect. It also requests the Government to provide information on the impact of the Ministerial Decisions referred to above.

The Committee expresses its deep concern regarding the complete absence of consideration of its requests made over many years to address the serious shortcomings in the application of the Convention observed in both the public and private sectors. While noting the persistence of numerous allegations of anti-union discrimination, the Committee deeply regrets that no legislative amendments have been made or considered to prohibit anti-union discrimination in recruitment processes or to ensure that provisions with dissuasive sanctions against anti-union discrimination and interference in the public sector protect the leaders of all public service organizations.The Committee also notes with deep concern that: (i) the combination of severe legislative restrictions on the right to organize, as noted in its comments on the application of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the high threshold of representativeness required for collective bargaining, and the lack of a legal framework for sectoral collective bargaining alleged by the trade union organizations, effectively prevent, both in law and in practice, the vast majority of the country's private sector workers from exercising their right to collective bargaining; and (ii) the current legislation in the public sector excludes most public sector workers covered by the Convention from the right to collective bargaining.In these circumstances, the Committee considers that this case meets the criteria set out in paragraph 90 of its General Report to be asked to be submitted to the Conference.

[The Government is asked to supply full particulars to the Conference at its 113 th  Session and to reply in full to the present comments in 2025.]