Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative (Minister of Labour and Human Resources) stated that the Government of Ecuador had not avoided taking measures to give effect to the requirements of Convention No. 153. In the last six years, six different Ministers of Labour had succeeded one another, having no possibility in their short terms in office to develop any coherent labour policy and plans of medium and long term, nor present and effect changes in the labour legislation. The Committee of Experts had observed that sections 330 and 331 of the Labour Code, which gave certain flexibility for the determination of the hours of work and obligatory rest periods on weekends and holidays, could potentially lead to abuse on the part of the employers due to lack of legal clarity as to the exercise of those rights.

Nevertheless, section 47 of the Labour Code limited the working day to eight hours of work, and work on Sunday and Saturday afternoons was considered an exception, as defined in section 52(2) of the Labour Code, according to the specificity of the activities carried out, such as transport by road. The fact that road transport was the only means of delivery of the merchandise and resources did not imply that workers did not benefit from the minimum rest periods, substituting weekends worked for other days of the week. Pay for working on Saturday or Sunday was increased by 100 per cent in accordance with section 55(4), while section 56 stipulated that "a contract cannot fix a longer duration of work in a day than those established in the preceding section", and enforced by a sanction under section 626 of the Labour Code.

In the light of the above, there was no apparent violation that limited the minimum rights, whereas, read alone, sections 330 and 331 of the Labour Code could in fact obscure the clear provision defining the entitlement to the minimum rest periods. Without prejudice to this conclusion, there are general provisions in the labour law and the Constitution, that prevail over these questionable provisions, and they will be detailed and analysed in the Government's detailed report that would be requested in 2003.

The Government considers as a relevant priority the need to harmonize the legislation with the Convention. Ecuador's intention was to take seriously the international obligations established by the ILO, and for that purpose it requested the technical assistance of the Regional Office in drafting the regulations to give clear application to the provisions of the Convention mentioned by the Committee of Experts. It hoped that the results of the requested mission would be included in its next report to be provided by September of this year.

The Employer members stated that this Committee had not yet dealt with this Convention but that the comments by the Committee of Experts dated back to 1995. Referring to the observation of the Committee of Experts and the statement made by the Government representative, they pointed out that there was a discrepancy between the national law and the provisions of the Conventions, notwithstanding the interpretation of the national legislation made by the Government, which differed from that given by the Committee of Experts. Nevertheless, it should be stressed that regulations on working time were subject to constant changes and needed to be adapted to socio-economic realities. Convention No. 153 was 20 years old and had only been ratified by seven member States. While acknowledging the discrepancy between national law and the provisions of the Convention, they considered that the discussions should bear in mind that the Governing Body had classed this Convention among those that needed to be revised.

The Worker members emphasized the importance that was traditionally being accorded to the issue of working time within the ILO. For them, it was crucial to have a discussion on the law and practice concerning the road transport sector in Ecuador; the legislation of Ecuador was not yet being adapted to the requirements of Convention No. 153. As such, according to the Labour Code of 1997, employers could make contradictory decisions on the duration of working time, including on Sundays, Saturday afternoons as well as on public holidays. Respect of the principles contained in the Convention was all the more important when a country had a complex road network and an insufficient infrastructure. Moreover, the case of Ecuador reflected a serious health and safety at work situation, a topic that was at the heart of the integrated approach currently being discussed at this session of the Conference. Finally, this case was important to the extent that the race for competitiveness directly affected the working conditions in this sector, which also suffered from the absence of an efficient labour inspection service. In conclusion, the Worker members suggested that the offer for technical assistance by the Office should be renewed. They also requested that the Government bring, without delay, its legislation into conformity with the Convention, reinforce its labour inspection services in the road transport sector and finally reply to the comments that had been transmitted by a worker organization many years ago.

The Worker member of Ecuador stated that the biggest transport companies in the country were those that paid the lowest salaries to their drivers. In this sector, overtime was often not compensated. The roads in Ecuador and in the whole region were in a very poor condition. He requested the Government to carry out the labour reform, as promised by the Minister, and to do so in consultation with the social partners. Without prejudice to the labour reform, priority should be given to the application of Convention No. 153. Failing this, he suggested this case should be examined anew next year.

The Government representative stated that measures had been taken to repair the damage caused in 1998 by the climatic phenomenon called El Niño. There were in place labour inspection services and a legal framework, as well as the regional accords on transportation. However, it was not the Ministry of Labour which was responsible for these matters. He repeated that reforms were being pursued on the basis of tripartite dialogue. The Minister of Labour could suggest to the President of the Republic to submit the draft of the reform to the legislative authority, but could not do so directly himself. His Government was observing the law and enforced the provisions of the Labour Code including those on hours of work.

The Employers members agreed with the comments made by the Worker members and supported the common request that the national legislation should, as soon as possible, be brought into line with the Convention. They added that they had not made any reference to the practical relevance of the Convention but to the low number of ratifications and the fact that the Governing Body had acknowledged the need to revise this Convention.

The Worker members recalled that the law should be amended to bring it into conformity with the provisions of the Convention. The law was still in force and had to be applied in full and without restriction. Concerning the proposal for technical assistance, they noted that they had not received any response from the Government in this regard. They urged the Government to supply, before the next session of the Committee of Experts, the report requested with information on the developments in law and practice.

The Committee took note of the statement of the Government representative concerning national law and practice in the hours of work and rest periods in road transport and the discussion which followed. The report of the Committee of Experts had revealed discrepancies in the previous legislation and in the Labour Code of 1997, which contained special provisions concerning conditions of work in public and private transport enterprises. The legislation, in its present form, did not ensure conformity with the main provisions of the Convention. The Committee urged the Government to adopt the necessary administrative and legal measures in consultation with the interested representative organizations of workers and employers with a view to bringing the national legislation and practice into conformity with the requirements of the Convention. The Committee took note of the Government's request for the continuation of technical cooperation and hoped that it would be effective. It invited the Government to supply in its next report full information on the progress achieved in the application of the Convention.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on hours of work, the Committee considers it appropriate to examine Conventions Nos 101 (holidays with pay in agriculture) and 153 (hours of work and rest periods in road transport) together in the same comment.

Holidays with pay (agriculture)

Article 1 of the Convention. Postponement of annual holidays with pay. The Committee notes that in response to its previous comment, the Government indicates in its report that under section 74 of the Labour Code, employers may decide to postpone for one year annual holidays with pay for workers who perform technical work or are in positions of trust and are difficult to replace for short periods. The Government also indicates that employers may authorize such postponement solely for the types of work established in section 58 of the Labour Code, that is: (i) persons who, in any form, represent the employer or act on the employer’s behalf; (ii) travelling insurance or commercial agents acting as salespersons or buyers, provided that they are not subject to fixed working hours; and (iii) resident guards or doorkeepers, provided that there is a written contract drawn up before the competent authority, establishing the specific requirements and nature of their tasks. With regard to section 75 of the Labour Code, which allows workers to relinquish their annual holidays with pay for three consecutive years, so that they can take them cumulatively in the fourth year, the Committee notes the Government’s indication that the authority to accumulate rests solely with the worker and not the employer. In this regard, the Committee recalls that the postponement of annual holidays with pay is not envisaged in the Convention and that it requires that a certain minimum proportion of annual holidays with pay must be granted to workers in agricultural undertakings and related occupations after a period of continuous service with the same employer. The Committee requests the Government to indicate the measures adopted or envisaged to ensure that all workers covered by the Convention effectively enjoy a minimum period of holidays with pay each year.

Article 5(d). Exclusion of public holidays from the annual holiday with pay. The Committee notes that the Government provides no relevant information in response to its previous comment on section 69 of the Labour Code, which provides that all workers are entitled to enjoy annually an uninterrupted period of 15 days of rest, including non-working days. The Committee requests the Government to indicate the measures adopted or envisaged to ensure the exclusion of non-working days, such as weekly days of rest, public and customary holidays, from the annual holiday with pay.

Hours of work in transport

Legislation. The Committee notes that on 25 November 2015, Ministerial Decision No. MDT-2015-0262 (the Decision) regulating specific labour relations in the land passenger and freight transport sector in all its forms was published in the Official Gazette. The Committee also notes that the Decision is intended to establish provisions regulating the special labour relations in the land passenger and freight transport sector in all its forms, as set out in section 63 of the General Regulations issued under the Basic Act on land transport, traffic and road safety, namely: public passenger transport (urban, inter-parish, inter-cantonal, inter-provincial and international); and commercial transport (school and institutional transport, conventional and executive taxis, light or heavy goods and tourist vehicles, and others) as an optional and voluntary contractual arrangement to those established in the Labour Code, for all persons and associations engaged in this activity, whether as employers or workers, including drivers and attendants. The Committee also notes that the second general provision of the Decision provides that the Labour Code shall apply in all matters not covered by the Decision.

Articles 5 and 7 of the Convention. Maximum continuous driving time. Breaks. The Committee notes that: (i) section 4 of the Decision provides that within the working time of transport workers the employer shall recognize periods set aside as breaks during driving, in conformity with the regulations in force; (ii) section 7 of the Act on the work of professional drivers provides that any professional driver providing services in a dependent relationship shall be subject to the working hours, additional or overtime hours set out in the Labour Code; and (iii) section 57 of the Labour Code provides that the normal working day may be divided into two parts, with a rest period of up to two hours after the first four hours of work, and may be undivided, if the Regional Director of Labour deems that circumstances so require. In the event of overtime hours, the parts of each working day shall not exceed five hours. The Committee requests the Government to indicate whether section 57 applies systematically to workers in the transport sector. If not, the Committee asks the Government to indicate in what other manner it is ensured that no driver is in practice authorized to drive continuously for more than four hours, or to work continuously for more than five hours without a break, as required by Articles 5 and 7 of the Convention.

Article 6(3). Reduction of total driving times. Particularly difficult conditions as determined by the competent authority. The Committee notes the absence of provisions in the Decision and in the Labour Code establishing that the total driving times of nine hours per day and 48 hours per week shall be reduced in the case of transport activities carried out in particularly difficult conditions. The Committee requests the Government to indicate the manner in which effect is given to this provision of the Convention.

Article 9. Exceptions. The Committee notes that section 5 of the Decision provides that special working days, duly approved by the Ministry of Labour, may be established in cases in which the nature of the activity so requires. The Committee requests the Government to indicate whether such working days have been approved by the Ministry of Labour and, if so, to provide detailed information on the circumstances, maximum limits to continuous driving hours and working hours and the duration of the daily rest periods required for such special working days.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 1 of the Convention. Postponement by the employer of annual holiday with pay. In its previous comments, the Committee noted that section 74 of the Labour Code, which, under the terms of section 338, applies to agricultural workers, allows employers to deny, for one year, annual holiday with pay to workers who perform technical work or are in positions of trust and are difficult to replace for short periods, and it requested the Government to indicate the circumstances in which employers may take such decisions. The Committee notes that the information contained in the Government’s report does not respond to this question. The Committee once again requests the Government to specify the circumstances in which employers may decide to postpone the annual holiday with pay of agricultural workers for one year.

Article 3. Minimum period of service. In its previous comments, the Committee requested the Government to indicate the legal provisions specifying that the minimum period of service required for entitlement to annual holiday with pay is one year. In this regard, the Committee notes the Government’s indication that Ruling No. 35-2000, issued by the Second Chamber of the former Supreme Court of Justice, provides that workers who have not completed one year of service are entitled to holiday that is proportional to their period of service. The Committee notes this information.

Article 5(d). Exclusion of public holidays from annual holiday with pay. In its previous comments, the Committee noted that section 69 of the Labour Code provides that all workers are entitled to enjoy annually an uninterrupted period of 15 days of rest, including non-working days. The Committee further noted that, in accordance with Article 5(d) of the Convention, where appropriate, provision shall be made for the exclusion of public and customary holidays from the annual holiday with pay. The Committee notes that the Government has not provided any information on this subject. The Committee requests the Government to take the necessary measures to ensure the exclusion of public and customary holidays from annual holiday with pay.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Articles 1 and 8 of the Convention. Postponement by the worker of annual holiday with pay. In its previous comments, the Committee noted that section 75 of the Labour Code allows workers to relinquish their annual holiday with pay for three consecutive years, so that they can take it cumulatively in the fourth year. In this regard, the Committee recalled that Article 8 of the Convention considers void any agreement to relinquish the right to an annual holiday with pay, or to forgo such a holiday. Moreover, the Committee drew the Government’s attention to paragraph 177 of its General Survey of 1964 on annual holidays with pay, in which it pointed out that, while certain exceptions may be considered as acceptable because they respond to the interests of both workers and employers, it is essential to maintain the principle that, in the course of the year, workers must be granted at least part of their leave in order to enjoy a minimum amount of rest and leisure. The Committee once again requests the Government to take the necessary measures without delay to ensure that, should the postponement of an annual holiday continue to be permitted, this will not affect a certain minimum part of the holiday, which must be granted every year.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Articles 5 to 9 of the Convention. Hours of work and rest. In its previous comments, the Committee noted that for 20 years it has been emphasizing that the conditions of work in public and private transport enterprises are not in conformity with the Convention. The Committee notes an initiative to modify the Labour Code submitted by the Ministry of Industrial Relations to the National Assembly for discussion in May 2014. The Committee observes that the aforementioned initiative contains provisions relating to the mandatory break after a continuous four-hour period of driving and the daily rest after at least ten consecutive hours, which are in conformity with Articles 5 and 8 respectively of the Convention. The Committee also observes that the aforementioned initiative provides for a maximum total driving time, including overtime, of ten hours per day and 50 per week, instead of the nine hours per day and 48 per week provided for in Article 6 of the Convention. The Committee hopes that the Government will include in its next report information on the adoption of new legislation in order to ensure compliance with all the provisions of the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 1 of the Convention. Postponement of paid annual holiday by the employer. Further to its previous comments, the Committee notes that section 338 of the Labour Code on agricultural workers provides that the length of the working day, compulsory rest, holidays and other entitlements are governed by the relevant general provisions and that, consequently, section 74 of the Labour Code applies to agricultural workers. The Committee notes, in this connection, that the Government’s report contains no information on the circumstances in which the employer may decide to postpone holidays for one year. It therefore asks the Government to specify the circumstances in which employers may decide to postpone the paid annual leave of agricultural workers for one year.

Article 3. Minimum period of service. The Committee notes that the Government’s report contains no fresh information on the legislative provisions applying to the minimum period of service required for entitlement to paid annual leave. The Committee again asks the Government to indicate the legislative provisions specifying that the minimum period of service required for entitlement to annual paid holidays is one year, as the Government stated in its last report.

Article 5(d). Exclusion of public holidays from the paid annual holiday. The Committee notes that the Government’s report contains no fresh information on the legislative provisions governing the exclusion of public holidays from the annual holiday with pay. The Committee again asks the Government to indicate the measures taken or envisaged in order to give effect to this provision of the Convention.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

Articles 1 and 8 of the Convention. Postponement by the worker of paid annual holiday. The Committee notes that section 75 of the Labour Code still allows workers to relinquish their paid annual holidays for three consecutive years so that they can take it cumulatively in the fourth year. It draws the Government’s attention to paragraph 177 of its General Survey of 1964 on annual holidays with pay in which it pointed out that the fact that the Convention provides for the obligation to grant workers “annual” holidays (Article 1) and prohibits renunciation of this right (Article 8), is taken to mean that the postponement of holidays – which may nullify the whole purpose of the Convention – is not permitted. Should certain exceptions be considered as acceptable because they respond to the interests of both workers and employers, “it is essential to maintain the principle that, in the course of the year, the worker must be granted at least part of his leave in order to enjoy a minimum amount of rest and leisure”. The Committee accordingly urges the Government to take the necessary steps without delay to ensure that should the postponement of annual holiday continue to be permitted, this will not affect a certain minimum part of the holiday, which must be granted every year.

The Committee raises other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation, which read as follows:

Repetition

Articles 5–9 of the Convention. Hours of work and rest. The Committee notes that the Government merely refers in its report to the provisions of the Labour Code concerning conditions of work in public and private transport enterprises, the non-conformity of which with the Convention it has been emphasizing for 20 years. It also notes the new Organic Act on land transport, traffic and road safety, adopted on 24 July 2008, a copy of which has been attached by the Government to its report, but which does not contain any relevant provision regarding the implementation of the Convention. Finally, the Committee notes that the Government refers to the overall reform of the country’s legal system which is currently in progress, without, however, supplying any details regarding the possible preparation of a draft act intended to bring the legislation into conformity with the Convention. It recalls that, at the June 2003 session of the International Labour Conference, the Conference Committee on the Application of Standards urged the Government to “adopt the necessary administrative and legal measures, in consultation with the interested representative organizations of workers and employers with a view to bringing the national legislation and practice into conformity with the requirements of the Convention”. The Committee can only reiterate this request once again. It trusts that the Government, 20 years after ratification of the Convention, will finally take all the necessary steps to implement its provisions and proceed with the necessary amendments to the Labour Code. It requests the Government to supply all relevant information on progress made in the application of the Convention.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 1 of the Convention. Postponement of paid annual holiday by the employer. Further to its previous comments, the Committee notes that section 338 of the Labour Code on agricultural workers provides that the length of the working day, compulsory rest, holidays and other entitlements are governed by the relevant general provisions and that, consequently, section 74 of the Labour Code applies to agricultural workers. The Committee notes, in this connection, that the Government’s report contains no information on the circumstances in which the employer may decide to postpone holidays for one year. It therefore asks the Government to specify the circumstances in which employers may decide to postpone the paid annual leave of agricultural workers for one year.

Article 3. Minimum period of service. The Committee notes that the Government’s report contains no fresh information on the legislative provisions applying to the minimum period of service required for entitlement to paid annual leave. The Committee again asks the Government to indicate the legislative provisions specifying that the minimum period of service required for entitlement to annual paid holidays is one year, as the Government stated in its last report.

Article 5(d). Exclusion of public holidays from the paid annual holiday. The Committee notes that the Government’s report contains no fresh information on the legislative provisions governing the exclusion of public holidays from the annual holiday with pay. The Committee again asks the Government to indicate the measures taken or envisaged in order to give effect to this provision of the Convention.

Part V of the report form. Practical application. The Committee notes the information sent by the Government concerning the work of the labour inspectorate. The Committee requests the Government to continue to provide general information on the manner in which the Convention is applied in practice, including, for example, statistical data on the number of workers covered by the legislation, extracts of reports by the inspection services indicating the number and nature of contraventions reported and the penalties imposed, etc.

The Committee takes this opportunity to renew its invitation to the Government to consider the possibility of ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132). It requests the Government to keep the Office informed of any decision it may take as to the possible ratification of Convention No. 132 and any consequential amendments that would be needed in order to bring the legislation into line with the Convention.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 5 to 9 of the Convention. Hours of work and rest. The Committee notes with regret that the Government merely refers in its report to the provisions of the Labour Code concerning conditions of work in public and private transport enterprises, the non-conformity of which with the Convention it has been emphasizing for 20 years. It also notes the new Organic Act on land transport, traffic and road safety, adopted on 24 July 2008, a copy of which has been attached by the Government to its report, but which does not contain any relevant provision regarding the implementation of the Convention. Finally, the Committee notes that the Government refers to the overall reform of the country’s legal system which is currently in progress, without, however, supplying any details regarding the possible preparation of a draft Act intended to bring the legislation into conformity with the Convention. It recalls that, at the June 2003 session of the International Labour Conference, the Conference Committee on the Application of Standards urged the Government to “adopt the necessary administrative and legal measures, in consultation with the interested representative organizations of workers and employers with a view to bringing the national legislation and practice into conformity with the requirements of the Convention”. The Committee can only reiterate this request once again. It trusts that the Government, 20 years after ratification of the Convention, will finally take all the necessary steps to implement its provisions and proceed with the necessary amendments to the Labour Code. It requests the Government to supply all relevant information on progress made in the application of the Convention.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Further to its numerous comments, the Committee notes with regret that the Government provides no fresh information as to any amendment of its legislation, despite the assurance given in its last report that it would make every effort to amend the legislation as rapidly as possible to take account of national practice and the Committee’s comments.

Articles 1 and 8 of the Convention. Postponement by the worker of paid annual holiday. The Committee notes that section 75 of the Labour Code still allows workers to relinquish their paid annual holidays for three consecutive years so that they can take it cumulatively in the fourth year. It draws the Government’s attention to paragraph 177 of its General Survey of 1964 on annual holidays with pay in which it pointed out that the fact that the Convention provides for the obligation to grant workers “annual” holidays (Article 1) and prohibits renunciation of this right (Article 8), is taken to mean that the postponement of holidays – which may nullify the whole purpose of the Convention – is not permitted. Should certain exceptions be considered as acceptable because they respond to the interests of both workers and employers, “it is essential to maintain the principle that, in the course of the year, the worker must be granted at least part of his leave in order to enjoy a minimum amount of rest and leisure.” The Committee accordingly urges the Government to take the necessary steps without delay to ensure that should the postponement of annual holiday continue to be permitted, this will not affect a certain minimum part of the holiday, which must be granted every year.

The Committee raises other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Article 1 of the Convention. Postponement of annual paid holiday by the employer. The Committee notes that, under section 74 of the Labour Code, an employer may postpone for one year the annual paid holiday of employees who carry out technical work or hold positions of trust and who are difficult to replace for a short period of time. It requests that the Government indicate whether this provision may be applied to agricultural workers and, if so, to specify the circumstances in which such a decision may be taken by the employer.

Article 3. Minimum period of service. The Committee notes that, according to the information provided by the Government in its report, the minimum period of service required in order to enjoy annual holidays with pay is one year of uninterrupted service. The Committee requests that the Government indicate which statutory provision establishes the abovementioned minimum period of service.

Article 5(c). Proportionate holidays. The Committee requests that the Government indicate whether, when the period of continuous service of a worker is shorter than the minimum period required to qualify for an annual holiday with pay - one year according to the information supplied by the Government - that worker may, nevertheless, enjoy proportionate holidays or payment in lieu thereof.

Article 5(d). Public holidays. The Committee notes that section 69 of the Labour Code provides for an annual paid holiday of 15 days, including public holidays. Article 5(d) of the Convention, however, provides that, where appropriate, public and customary holidays are to be excluded from the annual holiday with pay. The Committee requests that the Government indicate the measures adopted or envisaged to ensure this exclusion.

Part V of the report form. The Committee requests that the Government give a general appreciation of the manner in which the Convention is applied in practice by providing, for example, extracts of inspection service reports and, if possible, statistics on the number of workers covered by the legislation in force and the number and nature of violations reported.

The Committee also takes this opportunity to recall that, further to the proposal of the Working Party on Policy regarding the Revision of Standards, the Governing Body of the ILO considered Convention No. 101 to be out of date and invited the States parties to that Convention to contemplate ratifying the Holidays with Pay Convention (Revised), 1970 (No. 132), which is not considered to be entirely up to date, but remains relevant in certain aspects (see document GB.283/LILS/WP/PRS/1/2, paragraph 12). Acceptance of the obligations set forth in Convention No. 132 in respect of persons employed in agriculture, by a State party to Convention No. 101 ipso jure involves the immediate denunciation of that Convention. The Committee requests that the Government keep the Office informed of any decision taken in this regard.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Further to the comments it has been making for almost 25 years, the Committee notes that the Government, in its report, indicates that it will make every effort to amend its legislation as expeditiously as possible, taking into account national practice and the Committee’s comments. The Committee trusts that the Labour Code will be amended in the very near future so as to be brought into line with the Convention’s provisions in the way described below.

Articles 1 and 8 of the Convention. Postponement of annual paid holiday by the worker. The Committee notes that Article 75 of the Labour Code still allows the worker to forego his annual paid holiday for three consecutive years so that he can take it cumulatively in the fourth year. As the Committee pointed out in its General Survey of 1964 on annual holidays with pay (paragraph 177), the fact that the Convention provides for the obligation to grant workers "annual" holidays (Article 1) and prohibits the renunciation of this right (Article 8) is taken to mean that the postponement of holidays - which may nullify the whole purpose of the Convention - is not permitted. Should certain exceptions be considered as acceptable because they respond to the interests of both workers and employers, "it is essential to maintain the principle that, in the course of the year, the worker must be granted at least part of his leave in order to enjoy a minimum amount of rest and leisure". The Committee therefore requests that the Government take the necessary measures to ensure, in the event that the postponement of annual holiday continues to be permitted, that this will not affect a certain minimum part of the holiday, which must be granted each year.

The Committee is also a addressing a request directly to the Government on other points.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Further to its previous observations, the Committee notes with regret that no significant progress has been made up to now in the application of the Convention. Indeed, according to the Government’s indications in its report, sections 322-336 of the Labour Code, which are not in conformity with the principal provisions of the Convention, continue to regulate work in transport enterprises. The Government adds that a tripartite meeting will be organized to determine the government policies and legal provisions which would enable it to bring the law into conformity with the Convention. In this respect, it is the Committee’s understanding that the Government had prepared a draft Ministerial Order intended to give effect to the provisions of the Convention.

The Committee recalls that during the course of the 17 years which have elapsed since the ratification of the Convention, the Government has not brought national law and practice into conformity with the requirements of the Convention, despite the repeated comments made by the Committee of Experts, the conclusions adopted in June 2003 by the Conference Committee on the Application of Standards, and also the many technical assistance missions carried out by the Office. The Committee requests the Government to keep it informed of any development relating to the adoption of the draft Ministerial Order referred to above and the results of the tripartite meeting to which the Government refers in its report. It trusts that the Government will make every effort, if necessary with the technical assistance of the Office, to give full effect to the provisions of the Convention without further delay.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided with the Government’s report, including the reply to its previous comments. With reference to these comments and the discussion which took place in the Committee on the Application of Standards at the 91st Session of the International Labour Conference in 2003, it observes that technical assistance to bring national legislation on hours of work and rest periods in road transport into conformity with the Convention has been requested once again. While it notes that previously granted assistance had remained without substantial results, the Committee reiterates its hope that, with renewed assistance from the Office, the Government will undertake every effort to make progress in adapting its legislation to the Convention on the matters referred to in its previous observations. It requests the Government to provide information in this respect in its next report.

[The Government is requested to report in detail in 2005.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report. The Government again states that the necessary measures to give effect to the Convention have not yet been taken. It refers, in a general way, to binding decisions of the Community of Andean States on international affairs preventing member States from regulating the same subject separately for their own countries. The Committee notes that since the entry into force of the Convention for Ecuador in 1989, the Government has given various and changing explanations as to why the national legislation has not been adjusted to the requirements of the Convention. Despite repeated offers for technical assistance and two ILO missions discussing the issue with the Government, no progress has been made. The Committee repeats its proposal to make use of ILO technical assistance and once again urges the Government to ensure compliance of national law and practice in national and international road transport with the provisions of the Convention.

In this respect, the Committee notes that the Labour Code of 12 June 1997 contains special regulations on the working conditions in private and public transport enterprises (sections 322-336; and also sections 10, 311 and 313 of the Labour Code). These special provisions appear to exclude the application of the general provisions on working time and rest periods, laid down in sections 47-68 of the Labour Code, in so far as they regulate the same subject especially for transport workers and employees.

Referring, in particular, to sections 330 and 331 of the Labour Code, the Committee points out that in view of the precedence of these provisions over the general working-time provisions of the Labour Code, section 47, paragraph 1, providing for an eight-hour work day and section 50, paragraph 2, of the Code, according to which Saturdays and Sundays are legal weekly holidays, appear not to be applicable. Indeed, sections 330 and 331 explicitly render unnecessary any need of determining, in the employment contract, a maximum duration of work and leave it to the discretion of the employer to authorize, in certain circumstances, more than eight hours of work per day, including on Sundays, Saturday afternoons and public holidays. Moreover, section 331 of the Labour Code, which leaves the decision on hours of work entirely to the discretion of transport entrepreneurs, appears to permit the entrepreneur to evade the authorization procedure in respect of work on Saturday afternoons and Sundays, as laid down in section 52 of the Labour Code.

In this respect, the Committee once more refers to the communication of the Ecuadorian Central of Class Organizations (CEDOC), dating back to 1994, which points to problems of observance of rest periods in road transport, due to the absence of a control mechanism for working time, leaving it to the entrepreneur and the employed driver to have breaks according to distance driven or frequency of journeys. The Government is again invited to comment on these observations.

In view of the aforementioned points, the Committee cannot but maintain its view that the Labour Code in its current form does not ensure conformity with the main provisions of the Convention such as those on hours of work, compulsory breaks, maximum total driving time or daily rest. It hopes that the Government will, as a matter of urgency, undertake the necessary efforts to bring national law and practice into line with the provisions of the Convention.

[The Government is asked to supply full particulars to the Conference at its 91st Session and to report in detail in 2003.]

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes that the new Labour Code of 12 June 1997 (sections 64 to 78) has brought no change to the substance of the provisions on holidays. The changes only concern the numbering of these provisions. Although section 35, No. 4 of the Constitution and section 72 of the new Labour Code prohibit the relinquishing of holidays, as pointed out by the Government, sections 74 and 75 of the Labour Code continue to be inconsistent with the Convention. The Committee notes with regret that the Government’s report does not contain any new elements with regard to bringing national legislation and practice into conformity with the provisions of the Convention.

The Committee must therefore repeat its previous observations, which read as follows:

For several years, the Committee has expressed regret that sections 73 [now 74] and 74 [now 75] of the Labour Code contravene Articles 1, 3 and 8 of the Convention. Specifically, section 73 [now 74] authorizes employers to refuse leave during one year in certain cases, and section 74 [now 75] permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year. The Committee once again recalls that, under the terms of the Convention, workers employed in agricultural undertakings and related occupations must be granted an annual holiday with pay (Article 1) whose minimum duration must be determined in a manner approved by the competent authority (Article 3), and that any agreement to relinquish the right to an annual holiday with pay, or to forego such a holiday, must be void (Article 8). The Committee refers to its General Survey of the Convention in 1964 and recalls that a certain minimum part of the annual holiday must be granted each year, even where postponement of annual leave is permitted (paragraphs 177 to 181). Any other approach would be contrary not only to the fundamental provisions of the Convention but to the spirit in which it was conceived.

The Committee urges the Government to take the necessary measures to bring the national legislation in line with the Convention as soon as possible.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

For several years, the Committee has expressed regret that sections 73 and 74 of the Labour Code contravene Articles 1, 3 and 8 of the Convention. Specifically, section 73 authorizes employers to refuse leave during one year in certain cases, and section 74 permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year. The Committee once again recalls that, under the terms of the Convention, workers employed in agricultural undertakings and related occupations must be granted an annual holiday with pay (Article 1) whose minimum duration must be determined in a manner approved by the competent authority (Article 3), and that any agreement to relinquish the right to an annual holiday with pay, or to forego such a holiday, must be void (Article 8). The Committee refers to its General Survey of the Convention in 1964 and recalls that a certain minimum part of the annual holiday must be granted each year, even where postponement of annual leave is permitted (paragraphs 177 to 181). Any other approach would be contrary not only to the fundamental provisions of the Convention but to the spirit in which it was conceived.

The Committee notes with regret that the Government's last report does not contain any new element with regard to bringing national legislation and practice into conformity with the provisions of the Convention. It urges the Government to take the necessary measures to that end as soon as possible.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's report and the elements of information provided in reply to its previous comments. The Government states that it is currently giving priority to the reconstruction of the national road infrastructure destroyed during the climatic phenomenon El Niño. It has therefore deferred the adoption of the necessary measures to give effect to the provisions of the Convention until the completion of this reconstruction phase.

The Committee hopes that the Government will, once this phase of reconstruction is completed, be able to envisage the manner in which it can give effect to all the provisions of the Convention, and particularly the formulation of legislation on national and international land transport with the technical assistance that it has requested from the ILO. In these conditions, the Committee hopes that the Government will be able in the near future to provide the information that has been requested for many years on the manner in which the Convention is applied in both national law and practice.

The Committee also requests the Government to provide its comments at the same time, in so far as it considers it appropriate, in reply to the observations made by the Ecuadorean Central Organization of Class Organizations respecting the absence of mechanisms to monitor the application of the Convention.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes that the Government's report contains no reply to previous comments. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government's report and its reply to the previous comments. It notes that the National Traffic and Land Transport Council, after a first analysis of the legal and technical aspects of the implementation of the Convention, has been asked to set up an inter-institutional committee with a specific short-term mandate. A study on the matter also recommends that the ILO technical assistance should be requested. The Committee hopes that the Government will shortly be able to establish the exact attributions of each sector of the administration in order to facilitate the application of the provisions of the Convention, so that it will then be in a position to provide the information requested on the laws and regulations that give effect to the provisions of the Convention, and on its application in practice, as required by the report form. The Committee also notes a communication sent by the Ecuadorian Central of Class Organizations, which alleges that there is a lack of any machinery to supervise the application of the Convention. It hopes that the next report will also contain comments which the Government might consider appropriate to make on this matter.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee notes the Government's report and its reply to the previous comments. It notes that the National Traffic and Land Transport Council, after a first analysis of the legal and technical aspects of the implementation of the Convention, has been asked to set up an inter-institutional committee with a specific short-term mandate. A study on the matter also recommends that the ILO technical assistance should be requested. The Committee hopes that the Government will shortly be able to establish the exact attributions of each sector of the administration in order to facilitate the application of the provisions of the Convention, so that it will then be in a position to provide the information requested on the laws and regulations that give effect to the provisions of the Convention, and on its application in practice, as required by the report form. The Committee also notes a communication sent by the Ecuadorian Central of Class Organizations, which alleges that there is a lack of any machinery to supervise the application of the Convention. It hopes that the next report will also contain comments which the Government might consider appropriate to make on this matter.

The Committee notes that the possibility of the above-mentioned technical assistance has been examined by the Office and hopes it will take place in the near future.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

For several years, the Committee has commented that sections 73 and 74 of the Labour Code contravene Articles 1, 3 and 8 of the Convention. Specifically, section 73 authorizes employers to refuse leave during one year in certain cases, and section 74 permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year.

In its latest report, the Government does not refer to the application of the above-mentioned Articles of the Convention. Consequently, the Committee must once again reiterate that under Articles 1 and 3 of the Convention, agricultural workers must be granted an annual holiday of a specified minimum duration and that, according to Article 8, any agreement to relinquish the right to annual holiday or forego such a holiday would be void. The Committee therefore trusts that the Government will amend sections 73 and 74 of the Labour Code on the points mentioned above in order to bring the national legislation into conformity with the Convention.

[The Government is asked to report in detail in 1996.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report and its reply to the previous comments. It notes that the National Traffic and Land Transport Council, after a first analysis of the legal and technical aspects of the implementation of the Convention, has been asked to set up an inter-institutional committee with a specific short-term mandate. A study on the matter also recommends that the ILO technical assistance should be requested.

The Committee hopes that the Government will shortly be able to establish the exact attributions of each sector of the administration in order to facilitate the application of the provisions of the Convention, so that it will then be in a position to provide the information requested on the laws and regulations that give effect to the provisions of the Convention, and on its application in practice, as required by the report form.

The Committee also notes a communication sent by the Ecuadorian Central of Class Organizations, which alleges that there is a lack of any machinery to supervise the application of the Convention. It hopes that the next report will also contain comments which the Government might consider appropriate to make on this matter.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information in the Government's report concerning the practical application of the Convention. It notes the Government's reference to a Statistical Bulletin for 1991 published by the Ministry of Labour which was not received by the Office. The Government is requested to supply a copy of the Statistical Bulletin with its next report as well as any other statistical information which might be relevant to the practical application of the Convention.

For several years, the Committee has commented that sections 73 and 74 of the Labour Code are not consistent with Articles 1, 3 and 8 of the Convention: section 73 authorizes the employer to refuse leave during one year in certain cases, and section 74 permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year.

The Committee noted the statement in the Government's report for the period ending 30 June 1990 that the loss of workers' rights to postpone annual leave would not ensure greater protection for them. In its latest report, the Government makes no reference to the application of the above-mentioned Articles of the Convention. In this light, the Committee can only repeat the requirements of the Convention that agricultural workers must be granted a holiday with pay each year of a minimum duration determined in a manner approved by the competent authority; and that any agreement to relinquish the right to such holiday or to forgo it must be void. It recalls that where postponement of annual leave is permitted this should not impinge on the specified minimum part of the holiday which must be granted each year (see paragraphs 177 to 181 of the Committee's General Survey of the Convention in 1964); any other approach would be contrary to the terms of the Convention and to the spirit of the notion of annual holidays.

The Committee would therefore be grateful if the Government would indicate what measures it proposes to bring the legislation into conformity with the Convention on this point; and in what way employers and workers concerned are consulted or participate in this respect (Article 2(3)).

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report containing answers to its previous comments. It notes that the National Traffic and Land Transport Council suggested, after a first analysis of the legal and technical aspects of implementation of the Convention, that an inter-institutional committee be set up with a specific short-term mandate. The above-mentioned Council also recommended that the Government should seek ILO technical assistance.

The Committee hopes that the Government will shortly be able to establish the exact attributions of each sector of the administration in order to facilitate the application of the provisions of the Convention, and that it will thus be in a position to provide the information requested previously on the laws and regulations giving effect to the provisions of the Convention, and on its application in practice, as required by the report form.

The Government is asked to report in detail for the period ending 30 June 1994.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

For several years the Committee has commented that sections 73 and 74 of the Labour Code are not consistent with Articles 1, 3 and 8 of the Convention: section 73 authorizes the employer to refuse leave during one year in certain cases, and section 74 permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year.

The Committee notes the statement in the Government's report that the loss of workers' rights to postpone annual leave would not ensure greater protection for them. In this light, the Committee can only repeat the requirements of the Convention that agricultural workers must be granted a holiday with pay each year of a minimum duration determined in a manner approved by the competent authority; and that any agreement to relinquish the right to such holiday or to forgo it must be void. It recalls that where postponement of annual leave is permitted this should not impinge on the specified minimum part of the holiday which must be granted each year (see paragraphs 177 to 181 of the Committee's general survey of the Convention in 1964); any other approach would be contrary to the terms of the Convention and to the spirit of the notion of annual holidays.

The Committee would therefore be grateful if the Government would indicate what measures it proposes to ensure the application of the Convention; and in what way employers and workers concerned are consulted or participate in this respect (Article 2(3)). Please also give a general appreciation of the manner in which the Convention is applied (point V of the report form).

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes from the Government's report that the only measure apparently taken to ensure observance of the Convention was the distribution of its text to the national transport federations and the Federation of Professional Drivers of Ecuador, and requesting them to apply the Convention.

It also notes that the Ministry of Labour has no data available concerning the practical application of the Convention since this subject is in the competence of the National Transit and Land Transport Council. It further notes that, according to a communication from the Council, the latter did not have any details concerning the application of the Convention, which had to be exclusively observed by the transport entrepreneurs, who in turn were subject to the control of the Ministry of Labour. The Committee hopes that the Government will be able to establish clear competences among the various parts of the administration, so that they are in a position to make effective the provisions of the Convention and to furnish the required information. It further requests the Government to ensure that not only information concerning the practical application of the Convention but also the relevant national legislation is provided with its next report, as requested in the report form.

The Government is asked to report in detail for the period ending 30 June 1993.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

For several years the Committee has commented that sections 73 and 74 of the Labour Code are not consistent with Articles 1, 3 and 8 of the Convention: section 73 authorises the employer to refuse leave during one year in certain cases, and section 74 permits workers to postpone leave for three consecutive years so as to accumulate it in the fourth year.

The Committee notes the statement in the Government's report that the loss of workers' rights to postpone annual leave would not ensure greater protection for them. In this light, the Committee can only repeat the requirements of the Convention that agricultural workers must be granted a holiday with pay each year of a minimum duration determined in a manner approved by the competent authority; and that any agreement to relinquish the right to such holiday or to forgo it must be void. It recalls that where postponement of annual leave is permitted this should not impinge on the specified minimum part of the holiday which must be granted each year (see paragraphs 177 to 181 of the Committee's general survey of the Convention in 1964); any other approach would be contrary to the terms of the Convention and to the spirit of the notion of annual holidays.

The Committee would therefore be grateful if the Government would indicate what measures it proposes to ensure the application of the Convention; and in what way employers and workers concerned are consulted or participate in this respect (Article 2(3)). Please also give a general appreciation of the manner in which the Convention is applied (Part V of the report form).

[The Government is asked to report in detail for the period ending 30 June 1992.]

Direct Request (CEACR) - adopted 1987, published 74th ILC session (1987)

In its previous comments, the Committee had drawn the Government's attention to the fact that the Convention does not provide for the possibility of deferring or accumulating leave and that in consequence section 73 of the Labour Code, which authorises the employer to refuse leave during one year in certain cases, and section 74, which permits the worker not to take his leave for three consecutive years so as to accumulate it in the fourth year, are not in conformity with the Convention.

In reply to these comments, the Government states that the Convention is silent on the question of whether the accumulation of leave is permitted or prohibited, and that the national legislation which provides for leave corresponding to each year of service assures the application of the principle of the Convention.

On this point, the Committee wishes to recall that according to Articles 1 and 3 of the Convention, agricultural workers must be granted an annual holiday of a specified minimum duration and that, according to Article 8, any agreement to relinquish the right to an annual holiday or to forego such a holiday must be void. The Committee expresses the hope therefore that the Government will amend the national legislation on the points mentioned above so as to bring it into conformity with the Convention.