Texts of pending comments

Articles 1(1), 2(1) and 25 of the Convention.Trafficking in persons. 1. National plan of action. The Committee previously noted the legislative and institutional framework for combating trafficking in persons and, observing that a new national plan of action against trafficking in persons was being prepared, it encouraged the Government to take steps to ensure its adoption.

The Committee notes the Government’s reference in its report to the adoption in 2019 of the Plan of Action against trafficking in persons in Ecuador 2019–30, which was drawn up in the context of an extensive participatory process with institutional actors and contributions from civil society, including the family members of victims. The Committee also welcomes the intercultural basis of the Plan of Action, which provides culturally relevant prevention and protection measures to cater for the specific needs of victims geared to diverse cultural contexts. The Plan of Action contains four components: (i) promotion of rights and prevention of trafficking; (ii) provision of care for trafficking victims, and full promotion and restoration of their rights; (iii) investigation and prosecution of the crime of trafficking in persons; and (iv) governance. The Plan of Action identifies targets for each component in terms of results and indicators, and its strategic management is the responsibility of the Interinstitutional Coordinating Committee for the Prevention of Trafficking in Persons and Illicit Trafficking of Migrants and for the Protection of Victims. The Committee requests the Government to provide information on the steps taken with a view to implementing all components of the Plan of Action against trafficking in persons in Ecuador 2019–30, indicating the results achieved and also the difficulties identified in the follow-up to the Plan and its evaluation. The Committee also requests the Government to provide information on the activities of the Interinstitutional Coordinating Committee for the Prevention of Trafficking in Persons and Illicit Trafficking of Migrants and for the Protection of Victims, including examples illustrating how coordination works between the various institutions involved in the implementation of the Plan.

2. Protection and assistance for victims. The Committee notes the establishment of a Case coordination team for the protection of victims of human trafficking and illicit trafficking of migrants, composed of eight state institutions, which, after they identify a victim, carry out inter-institutional coordination to provide comprehensive care and protection in line with their competencies. The Committee also notes that the Protocol for inter-institutional action for comprehensive care and protection for trafficking victims, adopted in 2020, describes in detail the role played by each of the institutions responsible for providing care for victims. Moreover, section 122 of the Basic Act on human mobility (as amended in 2021) provides that all institutions tasked with providing assistance for human trafficking victims must implement specialized models of care which will be binding on service providers at the national level. The Committee notes that, according to the statistical information contained in the Plan of Action, of the total number of victims of trafficking for sexual exploitation recorded in 2014–16, 3 per cent were foreign citizens and in 11 per cent of cases it was not possible to determine the victim’s nationality. The Committee also notes that the United Nations Committee on the Elimination of Discrimination against Women, in its concluding observations of 2021, referred to the low number of investigations and prosecutions in relation to reported cases of trafficking, owing partly to the risk of deportation for women victims of trafficking who are undocumented or in an irregular situation (CEDAW/C/ECU/CO/10, paragraph 23(c)). The Committee requests the Government to provide information on the action taken by the Case coordination team for the protection of victims of human trafficking and illicit trafficking of migrants and on the comprehensive protection measures from which trafficking victims have benefited. The Committee also requests the Government to provide examples of specialized care models, in particular those implemented for undocumented foreign victims.

3. Penalties. The Committee notes that the Government, in reply to its request for information on the application of the provisions of the Criminal Code relating to trafficking in persons (sections 91 and 92), provides examples of convictions related to the crime of trafficking in persons. As at the end of July 2021, a total of 121 persons had been prosecuted, and 39 persons had been sentenced for trafficking in persons. The Government also indicates that the Directorate of Controls and Inspections has not received any complaints relating to forced labour. The Committee also notes that the Ministry of the Interior, the National Police and the Public Prosecutor’s Office have developed a practical guide for identifying, acquiring, safeguarding, processing and using possible clues or evidence in cases of trafficking in persons. Police officers and prosecutors have been trained in how to use the guide. The Committee requests the Government to continue providing statistical information on the investigations launched, judicial proceedings initiated, and the type of convictions handed down in relation to the crime of trafficking in persons for sexual or labour exploitation. The Committee also requests the Government to provide information on the measures taken to strengthen the capacities of labour inspectors to detect elements that characterize situations of trafficking in persons for the purposes of labour exploitation, and to be able to collaborate with the prosecution service and the police in the investigation of such situations.

Article 2(2)(c). Prison labour. In its previous comments, the Committee noted the Regulations concerning the dependent work of persons serving a custodial sentence (MDT-2015-0004), which contain provisions ensuring that prison labour carried out for the benefit of private entities is of a voluntary nature and is performed with the free written consent of the person concerned and in conditions similar to those of a free employment relationship. The Committee duly notes the information provided by the Government, including statistics, on employment contracts concluded by prisoners working for the benefit of private enterprises. The Committee also notes the regulations governing the special contractual arrangement for services provided by prisoners (Interministerial Agreement between the Ministry of Labour and the Ministry of Justice, Human Rights and Religious Worship of 11 May 2018), section 7 of which provides that the contract for the provision of services must contain the express consent of the prisoner for performing the activities covered by the contract and also contain information on remuneration and conditions of work.

Impact of compulsory prison labour on the application of Article 1 of the Convention. In its previous comments, the Committee noted that section 60 of the Penal Code establishes compulsory community work as a non-custodial penalty and it requested the Government to indicate whether compulsory community work can be imposed by a judge without the consent of the convicted person and, if so, to specify the offences for which this penalty can be applied.

The Committee notes the Government’s reference in its report to the new “Regulations on the national system of social reintegration” adopted in 2020, which regulate community work for persons sentenced to imprisonment under a semi-open regime. Under section 254 of the Regulations, prisoners who have completed 60 per cent of their sentence can avail themselves of the semi-open regime, subject to fulfilling certain requirements, including the obligation to perform 100 per cent of the community work activities specified in their exit plan. The Committee notes the Government’s emphasis that the activities linked to the community or community work are voluntary.

However, the Committee notes that the Government does not provide any information on the obligation to perform community work, which constitutes one of the non-custodial penalties that can be imposed by a judge, in accordance with sections 60(2) and 63 of the Penal Code. In this regard, the Committee recalls that criminal penalties that involve compulsory labour, including compulsory community work, come within the scope of Article 1(a) and (d) of the Convention when they are imposed on convicted persons who have held certain political views or expressed ideological opposition to the established political, social or economic order, or have participated in a strike. The Committee therefore once again requests the Government to clarify whether compulsory community work can be imposed by a judge without the consent of the convicted person. If so, the Committee requests the Government to specify the offences for which compulsory community work can be imposed.

Article 1(a). Imposition of compulsory labour as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. With regard to its comment made in the previous paragraphs, the Committee notes that section 393 of the Penal Code establishes the penalty of community work for first-class offences that include unarmed public disturbance, except in the case of legitimate defence of the self or of a third party. Noting that this provision is drafted in broad terms, the Committee requests the Government to provide information on the application in practice of section 393 of the Penal Code, indicating whether judgments have been handed down under this provision and, if so, to indicate the penalties imposed and the acts that gave rise to such judgments.

Article 3 of the Convention. Right to strike of public servants. The Committee previously observed that the Basic Act reforming the laws governing the public sector (Basic Reform Act), adopted in 2017, contained excessive restrictions on the right of organizations of public servants to organize their activities and formulate their programmes, as recognized by Article 3 of the Convention. The Committee considered in particular that, as regards public servants who do not exercise authority in the name of the State: (i) the list of public services in which the right to strike is prohibited (health; environmental sanitation; education; justice system; fire service; social security; electricity; drinking water; sewerage; oil and gas production; fuel processing, transportation and distribution; public transport; postal and telecommunication services) should be limited to services the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) for public services of fundamental importance, the satisfaction of the basic needs of users or the continuous operation of installations in safe conditions can be ensured through the establishment of negotiated minimum services decided, if no agreement can be reached by the parties, by a joint or independent body which has the confidence of the parties, and not by the Ministry of Labour, without in any way calling into question the integrity of the latter or of its officials; and (iii) the referral of collective disputes to compulsory arbitration (which, according to the Act, can be decided by the Ministry of Labour when the latter considers that the provision of the corresponding public service is endangered) should be limited to situations in which strike action may be prohibited for public servants who exercise authority in the name of the State, to essential services in the strict sense of the term or in an acute national crisis (see the 2012 General Survey on the fundamental Conventions, paragraphs 131, 136 and 153). In this regard, the Committee notes the Government’s assertion that the legislation concerning the right to strike of public servants is adequate and does not impose excessive limitations. The Government reiterates that any stoppage of the above-mentioned services is prohibited because these are basic services to which the general public must have universal access and a total stoppage of these services would signify a violation of the rights of the rest of the population and would undermine the mission of the State to protect its citizens. Emphasizing once again that the necessary protection of the basic interests of the community is compatible with the preservation of the legitimate means of action of workers’ organizations, through the fixing of minimum services possible for public services of fundamental importance, the Committee once again requests the Government, in light of the considerations recalled above, to take the necessary steps to ensure that the legislation does not excessively restrict the right of organizations of public servants to organize their activities and formulate their programmes.

Determination of minimum services in the private sector in the event of disagreement between the parties. The Committee previously asked the Government to take the necessary steps to amend section 515 of the Labour Code to ensure that, in the event of disagreement of the parties concerning the determination of minimum services in the private sector, the decision is not taken by the government authorities. The Committee notes the Government’s indication that, if there is no agreement on the implementation of minimum services, it is up to the Ministry of Labour through the regional directorates to establish procedures for the provision of minimum services and that the intention is to maintain basic operations on the employers’ side to prevent damage to, or deterioration of, installations, property and assets. In this regard, the Committee recalls that it has always considered that any disagreement on minimum services should be resolved not by the government authorities but by an independent body or a joint body comprised of representatives from workers and employers, either body having the confidence of the parties, and being responsible to examine quickly and without formalities the difficulties raised, and empowered to issue enforceable decisions. The Committee therefore once again requests the Government to take the necessary steps to amend section 515 of the Labour Code in the manner indicated.

Compulsory arbitration in the private sector. The Committee previously observed that both the Constitution and the Labour Code contain provisions on the compulsory referral of collective labour disputes to conciliation and arbitration tribunals. The Committee asked the Government to adopt the necessary measures to amend the legislation, in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited or even prohibited. The Committee notes the Government’s indication that mediation is a process undertaken voluntarily and that this process becomes compulsory if differences persist between the parties in situations such as strikes. The Government also indicates that the aim is to ensure that the parties resolve their differences and that compulsory mediation in disputes such as strikes guides the parties and enables them to reach fair and satisfactory agreements, which cannot be achieved without an impartial mediator, when the dialogue between the parties involved does not reach a consensus. However, the Committee observes that the provisions in question contain the possibility of referring disputes not only to mediation but also to compulsory arbitration. In this regard, the Committee recalls that recourse to compulsory arbitration to end a collective labour dispute and a strike is only acceptable under certain circumstances, namely: (i) when the two parties to the dispute so agree; or (ii) when the strike in question may be restricted, or even prohibited, that is: (a) in the case of disputes concerning public servants exercising authority in the name of the State; (b) in conflicts in essential services in the strict sense of the term; or (c) in situations of acute national crisis, but only for a limited period of time and to the extent necessary to meet the requirements of the situation. The Committee therefore once again requests the Government to adopt the necessary measures to amend the legislation, so that compulsory arbitration is only possible in the situations indicated above.

Articles 3 and 6. Right to strike of federations and confederations. In its previous comments, the Committee had been asking the Government to clarify whether the legislation explicitly recognizes the right to strike of federations and confederations. The Committee notes that the Government, after referring to the constitutional provisions which recognize the right to strike of workers and their organizations, indicates that there is a wide range of second- and third-level labour organizations which have led various initiatives and cherished labour victories as their own, and that federations and confederations of workers play a vital advisory and support role with respect to strike calls by primary-level labour organizations. While noting these indications, the Committee requests the Government to clarify whether or not the national legislation allows federations and confederations to call strikes and, if applicable, to provide detailed information on general strikes convened by federations and confederations.

The Committee notes the Government’s reply to the joint observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) and the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT), received on 1 October 2020, which are concerned with issues that the Committee examines in the present comment. The Committee also notes the observations of Public Services International in Ecuador (PSI-Ecuador), received on 1 September 2021, which are concerned with issues examined in the present comment, as well as the Government’s reply in this regard.

Technical assistance. The Committee recalls that in December 2019 the Office, at the request of the Government, carried out a technical assistance mission, which presented the tripartite constituents with a draft road map for initiating a tripartite dialogue with a view to adopting measures to address the comments of the ILO supervisory bodies. The Committee notes the Government’s indication that the technical assistance provided in 2019 and the draft road map abovementioned did not result in any practical action. The Committee also takes note of the Government’s indication that for the time being it wishes to receive technical assistance only with regard to tripartite dialogue with the aim of improving and strengthening communication between the Government and the social partners. Noting with regret that no action has been taken to follow up the technical assistance provided by the Office in December 2019 concerning the measures to address the comments of the supervisory bodies, the Committee hopes that the technical assistance that the Government wishes to receive will be provided very soon so that the subsequent strengthening of social dialogue enables progress in taking the necessary measures to bring the legislation into line with the Convention with respect to the points set out below.

Application of the Convention in the private sector

Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’ associations, enterprise committees or assemblies for the organization of enterprise committees. Possibility of creating trade union organizations by branch of activity. For several years the Committee has been asking the Government to take the necessary steps, in consultation with the social partners, to revise sections 443, 449, 452 and 459 of the Labour Code in such a way as to: (i) reduce the minimum number of members required to establish workers’ associations and enterprise committees; and (ii) enable the establishment of primary-level unions comprising workers from several enterprises. The Committee notes the Government’s indication that: (i) fixing a minimum number of workers and limiting associations to the level of an enterprise for the establishment of a trade union is not intended to restrict or limit the creation of this type of organization, but seeks to ensure the representativeness of the trade union organization in its relations with the employers, demonstrating cohesion and agreement on the part of the majority; and (ii) with regard to establishing labour organizations with workers from different enterprises, the Labour Code does not provide for a form of association that would allow for such organizations. In this regard, the Committee recalls that: (i) the requirement of a reasonable level of representativeness to conclude collective agreements must not be confused with the conditions required for the establishment of trade union organizations; (ii) the minimum number of members must be kept within reasonable limits so as not to obstruct the free establishment of organizations as guaranteed by the Convention; and (iii) the Committee generally considers that the requirement of a minimum number of 30 members to establish enterprise unions in countries where the economy is characterized by the prevalence of small enterprises hinders the freedom to establish trade unions. With regard to section 449 of the Labour Code, which requires trade unions to consist of workers from the same enterprise, the Committee recalls that, under Articles 2 and 3 of the Convention, it should be possible to establish primary-level trade unions comprising workers from several enterprises. The Committee recalls that ASTAC, in its observations of 2020, indicated that the Ministry of Labour had refused to register it as a trade union on the grounds that it was not formed of workers from the same enterprise. The Committee notes the Government’s indication, in reply to ASTAC’s observations, that ASTAC brought an action for constitutional protection and, by a ruling issued on 25 May 2021, the Provincial Court of Justice of Pichincha ordered the Ministry, pursuant to revision and analysis of the documents of ASTAC, to proceed with its registration as a trade union and also to regulate the exercise of the right to freedom of association by branch of activity so as to avoid any recurrence of such situations. The Government indicates that, even though it has filed an extraordinary motion for protection which is before the Constitutional Court of Justice, this action does not suspend the obligation to comply with the ruling, and so the Directorate of Labour Organizations at the Ministry of Labour continues to review the requirements of the present procedure for establishing ASTAC, in accordance with the ruling of 25 May 2021. Duly noting the ruling concerning ASTAC, the Committee firmly hopes that steps will be taken to proceed with the registration of ASTAC as a trade union. In particular, the Committee welcomes the fact that the ruling contributes towards enabling the establishment of trade union organizations by branch of activity, and trusts that the Committee’s view on this important development in the application of the Convention will be brought to the attention of the Constitutional Court of Justice. In light of the above, the Committee fully expects that the Government will take the necessary steps, in consultation with the social partners, to revise the sections of the laws referred to above in the manner indicated and requests the Government to keep it informed of developments in this respect.

Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking the Government to amend section 10(c) of Ministerial Decision No. 0130 of 2013 issuing regulations on labour organizations, which provides that trade union executive committees shall lose their powers and competencies if they do not convene elections within 90 days of the expiry of their term of office, as set out in their respective union constitutions; such amendment being necessary to ensure that the consequences of any delay in holding elections shall be determined by the union constitutions themselves, subject to the observance of democratic rules. The Committee notes the Government’s reiteration that the regulations in question were approved with the participation of representatives of several labour organizations and trade union confederations, with the intention of resolving the issues faced by workers’ organizations when the latter are without leadership and it is impossible to convene new elections – providing a responsive, simplified mechanism in which the principles of participation, transparency and democracy predominate. The Government also indicates that, with the objective of providing legal certainty during the health emergency resulting from the COVID-19 pandemic, the Ministry of Labour exceptionally authorized the extension of the terms of office of executive committees of labour organizations for up to 90 days when their terms had expired after the last state of emergency. Recalling that under Article 3 of the Convention, trade union elections are an internal matter for organizations and should primarily be regulated by their constitutions, and observing that the consequences established by the regulations in the event of failure to respect the prescribed deadlines – the loss of powers and competencies for trade union committees – involve a serious risk of paralysing the capacity for trade union action, the Committee once again requests the Government to amend section 10(c) of the regulations in the manner indicated and to keep it informed of any developments in this respect.

Article 3. Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that in 2015 it noted with satisfaction that section 49 of the Labour Justice Act had amended section 459(4) of the Labour Code and removed the requirement of Ecuadorian nationality to be eligible for trade union office. The Committee notes that the Government confirms that, as previously indicated by the social partners, section 49 was declared unconstitutional by ruling No. 002-18-SIN-CC of 2018. The Committee requests the Government to send a copy of the aforementioned ruling. The Government indicates in this regard that it is up to the legislative authorities to analyse and, if they see fit, to amend this prohibition. Recalling that under Article 3 of the Convention, workers’ and employers’ organizations should have the right to elect their representatives in full freedom, the national legislation must allow foreign workers to serve as trade union officials if permitted under their constitutions and rules, at least after a reasonable period of residence in the host country, the Committee accordingly requests the Government to amend section 459(4) of the Labour Code and to keep it informed of any developments in this regard.

Elections as officers of enterprise committees of workers who are not trade union members. The Committee previously indicated to the Government the need to amend section 459(3) of the Labour Code in such a way that workers who are not enterprise committee members may stand for office only if the enterprise committee’s own statute envisages that possibility. The Committee notes the Government’s indication that the purpose of the legal provision is to ensure that all members have the right to participate and that in any case it will depend on how the right is formulated in the statute. Recalling that the legislative provision enabling workers who are not trade union members to stand for office on an enterprise committee is contrary to trade union independence as recognized by Article 3 of the Convention, the Committee once again requests the Government to take the necessary steps to amend the abovementioned provision of the Labour Code and to keep it informed of any developments in this respect.

Application of the Convention in the public sector

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join organizations of their own choosing. The Committee previously noted that although section 11 of the Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017, establishes the right to organize for public servants, certain categories of public service staff were excluded from that right, especially those under contract for occasional services, those subject to free appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that under Articles 2 and 9 of the Convention, with the sole possible exception of the members of the police and of the armed forces, all workers, including permanent or temporary public servants and those under fixed-term or occasional services contracts, have the right to establish and to join organizations of their own choosing, the Committee asked the Government to take the measures required to bring the legislation into line with the Convention. The Committee notes the Government’s indication that: (i) the public institutions of the State are working to ensure that public servants have their respective definitive appointments, provided that their activities are not temporary; and (ii) public servants on statutory, fixed-term contracts and those who are subject to free appointment and removal from office are officials who technically could perform roles equivalent to those of employers in the private sector, and so their participation in the exercise of public servants’ right and freedom to organize would cause conflicts of interest. In this regard, the Committee is bound to emphasize that even though barring public servants who exercise authority from the right to join trade unions which represent other public sector workers is not necessarily incompatible with the Convention, this depends on two conditions: (i) senior public officials should be entitled to establish their own organizations to defend their interests; and (ii) the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities (see 2012 General Survey on the fundamental Conventions, paragraph 66). In light of the above and once again recalling that under Articles 2 and 9 of the Convention, with the exceptions previously mentioned, all workers have the right to establish and to join organizations of their own choosing, the Committee once again requests the Government to take the necessary measures to bring the legislation into line with the Convention.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing without previous authorization. Organizations of public servants other than the committees of public servants. The Committee observed that, according to the provisions of the Basic Reform Act and Ministerial Decision MDT-2018-0010 regulating the right to organize of public servants, the committees of public servants, which must comprise “50 per cent plus one” of the staff of a public institution, have the responsibility for defending the rights of public servants and are the only bodies which can call a strike. Recalling that trade union pluralism must be possible in all cases, the Committee has been asking the Government to indicate what means are available to organizations of public servants, other than the committees of public servants, for defending the occupational interests of their members. The Committee notes the Government’s indication that: (i) public servants’ right to organize is duly guaranteed by the Basic Public Service Act (LOSEP) (amended by the Basic Reform Act); and (ii) Decision No. SNGP0008-2014 of the National Policy Management Secretariat promotes the functioning of organizations which exercise the constitutional right of association and organization without there being any legal basis for dealing with these organizations in the Basic Reform Act. The Committee observes that the Decision No. SNGP0008-2014 to which the Government refers, establishes the competencies of the institutions of the State for regulating social organizations created under the Civil Code. It also notes the Government’s indication, in the reply to the observations of PSI-Ecuador, that the LOSEP recognizes the committees of public servants as the only form of organization. In light of the above, the Committee is bound once again to recall that under Article 2 of the Convention, trade union pluralism must be possible in all cases, and that no organization of public servants should be deprived of the essential means for defending the occupational interests of its members, organizing its administration and activities, and formulating its programmes. Underlining the fact that all organizations of public servants must be able to enjoy the various guarantees established in the Convention, the Committee requests the Government to provide information on organizations of public servants other than the committees of public servants and to indicate in detail what means they have for defending the occupational interest of their members. The Committee also requests the Government to provide a copy of the updated text of the LOSEP and to take the necessary steps to ensure that this law does not restrict recognition of the right to organize to the committees of public servants as the sole form of organization.

Articles 2, 3 and 4. Registration of associations of public servants and their officers. Prohibition of the administrative dissolution of such associations. The Committee previously asked the Government to take the necessary measures to ensure that the rules of Decree No. 193, which retains engagement in party-political activities as grounds for administrative dissolution, do not apply to associations of public servants whose purpose is to defend the economic and social interests of their members. The Committee notes the Government’s indication that party politics are the sum total of activities aimed at governing society from a specific ideological or philosophical standpoint and that these activities are prohibited for trade union organizations since the unions’ objectives, regardless of political affinity, must seek and focus on the economic and social improvement of their members. It indicates that the amendment of the Decree is a matter for the President of the Republic in any case. Recalling that defending the interests of their members requires associations of public servants to be able to express their views on the Government’s economic and social policy and that Article 4 of the Convention prohibits the suspension or administrative dissolution of such associations, the Committee firmly urges the Government to take the necessary steps to ensure that the rules of Decree No. 193 do not apply to associations of public servants which have the purpose of defending the economic and social interests of their members.

Article 3. Right of workers’ organizations and associations of public servants to organize their activities and to formulate their programmes. The Committee previously asked the Government to take the necessary measures to amend section 346 of the Basic Comprehensive Penal Code (COIP), which provides for imprisonment of one to three years for stopping or obstructing the normal provision of a public service, so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The Government previously indicated that this matter was going to be referred to the relevant state institutions in order to consider whether the Code should be amended. The Committee notes that the Government focuses its reply on emphasizing that public servants’ right to strike is set forth in chapter III of the LOSEP, and that the criminal penalties are only imposed in cases where strikers act unlawfully, namely, by totally blocking access for the general public to public services, committing acts of violence or causing damage to public property. The Committee recalls in this regard that it has continually emphasized that no penal sanctions should be imposed against a worker for having carried out a peaceful strike and thus for merely exercising an essential right, and therefore that measures of imprisonment or fines should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property, or other serious infringements of penal law have been committed, and can be imposed exclusively pursuant to legislation punishing such acts, such as the Penal Code (for example, in the case of failure to assist a person in danger, deliberate injury or damage deliberately caused to property) (see 2012 General Survey, paragraph 158). In light of the above, the Committee once again urges the Government to take the necessary measures to ensure that section 346 of the Basic Comprehensive Penal Code (COIP) is amended in the manner indicated and to keep it informed of any developments in this regard.

Administrative dissolution of the National Federation of Education Workers (UNE). In its last comment, having noted the registration of social organizations related to the UNE, (which was dissolved by an administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the Government to take the necessary steps to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the organization so requested. It also asked the Government to ensure the full return of the property seized from the UNE as well as the removal of any other consequences resulting from the administrative dissolution of the UNE. The Committee notes the Government’s indication that: (i) the UNE opted to register as a social organization and there are no procedures pending at the Ministry of Labour in which the UNE applied for registration as a trade union organization; (ii) in the 2019–21 period, 38 social organizations were registered under the UNE title; and (iii) by a decision of 7 June 2021, the Under-Secretariat of Education of the Metropolitan District of Quito approved the constitution of the organization called the “National Federation of Education Workers (UNE-E)” and granted it legal personality. While duly noting the detailed information from the Government, the Committee notes that, according to PSI-Ecuador, the registration of the UNE as a trade union organization and not as a social organization is facing obstruction because of legal confusion and the lack of application of the Convention in its sector. The Committee requests the Government to indicate whether the registration of the UNE-E with the Under-Secretariat of Education of the Metropolitan District of Quito means that the UNE has been able to resume its activities of defending the occupational interests of its members. The Committee also once again requests the Government to take all necessary measures to ensure the registration of the UNE as a trade union organization with the Ministry of Labour, if the UNE so wishes. The Committee also once again requests the Government to ensure the full return of the property seized as well as the removal of any other consequences resulting from the administrative dissolution of the UNE, and to provide information in this regard.

The Committee notes with regret that to date it has been unable to observe progress on the adoption of measures needed to bring the legislation into line with the Convention. The Committee notes the Government’s indication that, because of the upheaval caused by the COVID-19 pandemic, it is currently giving priority to an Opportunities Bill, which incorporates the different views of the stakeholders in the labour and social spheres and through which the Government is endeavouring to stimulate and revitalize the labour market. While taking due note of these indications, the Committee recalls the fundamental importance of ensuring the full application of the Convention to tackle the consequences of the pandemic and urges the Government to make the necessary efforts to adopt specific measures in relation to the points highlighted in this comment. In this regard, the Committee notes that the Ministry of Labour, through the Directorate of Labour Organizations, expresses the intention of collaborating on any legislative initiative aimed at improving the exercise of workers’ rights. The Committee hopes that the technical assistance that the Government wishes to receive to strengthen social dialogue will be provided very soon and that its results enable progress with regard to the matters raised in the present comment. In this regard, the Committee hopes that any legislative reforms undertaken, in consultation with the social partners, will contribute towards ensuring observance of the rights established by the Convention.

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

[The Government is asked to reply in full to the present comments in 2022.]

The Committee notes the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 22 January 2020. The Committee requests the Government to provide its comments in this regard.

Articles 1–3 of the Convention. Contribution of the employment service to employment promotion. The Committee notes the indication in the Government’s report that the Employment Club Network (Red Social Empleo) has 28 offices at the national level in 21 of the 24 provinces in the country, and also has an online platform. The Government adds that, between January 2015 and June 2021, through the services of the Network, 263,104 persons were placed in dependent employment at the national level, including 52,623 during the course of 2020. According to the data provided by the Government, the provinces with the highest number of persons placed in jobs in 2020 were Orellana (7,992), Pichincha (7,472) and Sucumbios (7,272), and the province with the lowest number of people placed was Galápagos (nine). Most of the job placements were in the services (11,486), construction (10,011) and public (9,699) sectors. The Government also indicates that 39,327 job vacancies were created, 85,946 vacancies were sought and 175,526 persons were registered in the Employment Club Network in 2020. The Committee requests the Government to continue providing detailed information, including statistics disaggregated by gender and age, on the measures adopted to ensure the efficient operation of the public employment service and on their impact. Observing that the number of provinces covered by the offices of the Employment Club Network has fallen from 32 to 21 since 2014, the Committee requests the Government to indicate the reasons for this reduction in coverage and its impact, particularly on the least economically developed areas. The Committee also requests the Government to continue providing information on the number of persons seeking employment, the number of vacancies notified and the placements made through the Employment Club Network.

Articles 4 and 5. Cooperation with the social partners. The Committee notes the Government’s indication that the Employment Club Network undertakes activities to strengthen the vocational profile of citizens, including the provision of free monthly capacity-building courses based on cooperation between private enterprises and public institutions. During 2020, a total of 1,223 skills courses were recorded, with 65,535 persons receiving skills training. The Government adds that one of the essential activities of the public employment service is capacity building for new enterprises, especially in the private sector, and that 7,261 enterprises received training in 2020. The Committee requests the Government to continue providing updated and detailed information on the impact of the measures adopted, in collaboration with the social partners, to ensure the best possible use of the employment service.

Article 7. Particular categories of applicants for employment. The Committee notes the Government’s indication that, with a view to promoting linkages between labour supply and demand, with special emphasis on vulnerable groups requiring priority attention, the Employment Club Network organizes employment fairs which facilitate the matching of the vacancies available on the labour market with jobseekers. It adds that virtual fairs have been organized in 2020 and 2021 due to the COVID-19 pandemic. The Committee requests the Government to provide detailed information, including statistics disaggregated by gender and age, on the impact of the employment fairs organized by the Employment Club Network in relation to vulnerable groups requiring priority attention.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

The Committee notes the Government’s reply to the joint observations of the Ecuadorian Confederation of Unitary Class Organizations of Workers (CEDOCUT) and the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC), received on 1 October 2020.

The Committee also notes the observations of Public Services International in Ecuador (PSI-Ecuador), received on 1 September 2021, on issues examined by the Committee in the present comment, and also the Government’s reply in this regard.

Technical assistance. The Committee recalls that in December 2019 the Office, at the request of the Government, carried out a technical assistance mission which presented the tripartite constituents with a draft road map for initiating a tripartite dialogue with a view to adopting measures to address the comments of the ILO supervisory bodies. The Committee notes the Government’s indication that, although the undertaking given previously did not result in practical action, the Government wishes to receive technical assistance, for the time being with regard to tripartite social dialogue. Noting with regret that the Government has not taken action to follow up the technical assistance provided by the Office in December 2019 concerning measures to respond to the comments of the ILO supervisory bodies, the Committee firmly hopes that the assistance in which the government has expressed an interest will be given practical effect very soon and that any strengthening of social dialogue that results from it enables progress to be made with regard to adopting the measures needed to bring the legislation into line with the Convention with respect to the points set out below.

Application of the Convention in the private sector

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. For many years, the Committee has been referring to the need to include provisions in the legislation that guarantee protection against acts of anti-union discrimination at the time of access to employment. The Committee notes that the Government reiterates that the labour regulations in force give an adequate level of protection and that it does not consider it necessary to issue an additional standard in this respect. Recalling that Article 1 of the Convention covers the prohibition of anti-union discrimination at the time individual workers are hired, so that access to employment is not made subject to the condition that workers shall not join a union or relinquish union membership, as well as practices such as “blacklisting” members to prevent them being hired, the Committee underlines the need for the above-mentioned provisions to be included in the legislation and requests the Government to provide information on any measures adopted in this respect.

Article 4. Promotion of collective bargaining. The Committee recalls that in accordance with section 221 of the Labour Code, collective labour agreements must be concluded with the enterprise committee or, if one does not exist, with the organization with the largest number of worker members, provided that the latter represents over 50 per cent of the workers in the enterprise. The Committee previously urged the Government to adopt the necessary measures, in consultation with the social partners, to amend section 221 so that if there is no organization that represents more than 50 per cent of the workers, minority trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee notes that the Government reiterates that this requirement for the negotiation of a collective agreement is closely connected to the principles of democracy, participation and transparency since the benefits obtained in the collective agreement apply to all workers in the enterprise or institution. The Committee once again points out that while it is acceptable that the union which represents the majority or a high percentage of workers in a bargaining unit should enjoy preferential or exclusive bargaining rights, the Committee considers that in cases where no union meets these conditions, or does not enjoy such exclusive rights, minority trade unions should at least be able to conclude a collective or direct agreement on behalf of their own members (see 2012 General Survey on the fundamental Conventions, paragraph 226). The Committee recalls that, even though the requirement of representativeness for signing collective agreements is fully compatible with the Convention, the level of representativeness set should not be such as to hinder the promotion and implementation of free and voluntary collective bargaining as referred to by Article 4 of the Convention. The Committee recalls that in previous comments it noted the low rate of coverage of collective bargaining in the private sector. The Committee observes that, according to the statistics provided by the Government, between 2019 and August 2021 a total of 45 collective agreements were signed in the private sector. In light of the above, the Committee urges the Government to take the necessary measures, after consulting the social partners, to amend section 221 of the Labour Code so that if there is no organization comprising more than 50 per cent of the workers, trade unions can, either separately or jointly, negotiate at least on behalf of their own members. The Committee requests the Government to provide information on all the measures taken or envisaged in this respect. The Committee also requests the Government to continue providing information on the number of collective agreements signed and in force in the country, and also the sectors of activity (including agriculture and the banana sector) and the number of workers covered by them.

Application of the Convention in the public sector

Articles 1, 2 and 6. Protection of public sector workers who are not engaged in the administration of the State against acts of anti-union discrimination and interference. In its previous comments, the Committee noted the protections against anti-union discrimination and interference, including with regard to the “compulsory purchase of redundancy mechanism”, set out in the Basic Act reforming the legislation governing the public service (Basic Reform Act). Having observed that the said Act contained provisions which explicitly protected Civil Service Committee officers, the Committee asked the Government to take the necessary measures to ensure that the legislation contained provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference. The Committee also asked the Government to indicate the penalties and compensation applicable to acts of anti-union discrimination and interference committed in the public sector and to provide information on the outcome of the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional. The Committee notes the Government’s indication that protection against acts of discrimination and the right to form trade unions are established through explicit standards, both in the Constitution of the Republic and section 187 of the Labour Code and in the Basic Public Service Act (LOSEP), which prohibits all acts of discrimination against public servants. The Government considers that the labour regulations in force provide an adequate level of protection for public servants. The Committee observes that the Committee on Freedom of Association recently examined allegations of dismissals of leaders of organizations of public servants, stating that it trusted that the Government would take the necessary measures to ensure that the legal provisions applicable to the public sector, currently focusing on the protection of Civil Service Committee officers, protect all leaders of public servants’ organizations against possible acts of anti-union discrimination (see Report No. 393, March 2021, Case No. 3347, paragraph 433). The Committee once again emphasizes that it is important that the legislation should grant the same type of protection against possible acts of anti-union discrimination and interference to all leaders of all organizations of public servants on equal terms. The Committee therefore urges the Government to take the necessary steps to ensure that the legislation applicable to the public sector contains provisions that explicitly protect the leaders of all organizations of public servants against acts of anti-union discrimination and interference, and also provisions that establish penalties constituting a deterrent against committing such acts. The Committee requests the Government to provide information on any measures taken or envisaged in this regard. Furthermore, with regard to the legal action brought to have the compulsory redundancy purchase mechanism declared unconstitutional, the Committee notes the indication by PSI-Ecuador that the Constitutional Court, by a ruling issued on 28 October 2020, declared the compulsory nature of the purchase of redundancy with compensation to be unconstitutional. The Committee recalls that the compulsory redundancy purchase mechanism allowed the public administration, in exchange for payment of compensation, to unilaterally terminate the employment of public servants without the need to indicate the grounds for such termination. The Committee recalls that it previously underlined the importance of measures being taken to ensure that use of the compulsory redundancy purchase mechanism did not give rise to acts of anti-union discrimination. The Committee duly notes the Constitutional Court ruling and observes that it indicates that the rules governing redundancy purchase with compensation will remain in force but application of that mechanism must not be compulsory. The Committee observes that PSI-Ecuador considers that the ruling represents an important step forward but does not provide the protection against anti-union discrimination provided by the Convention since, although it removes the word “compulsory” and also the obstacle to returning to work in the public sector for persons who have been dismissed, it leaves victims unprotected, with no consideration of restitution or compensation. PSI-Ecuador also alleges that the Government has so far not complied with the ruling as regards removing the obstacle to returning to work in the public sector. Recalling that the trade unions previously denounced the use of the compulsory redundancy purchase mechanism to dismiss public servants for their trade union activities, the Committee requests the Government to send its comments in this regard.

Articles 4 and 6. Collective bargaining for public sector workers who are not engaged in the administration of the State. In its previous comments, the Committee observed that the Basic Reform Act and Ministerial Order No. MDT-2018-0010 did not recognize the right to collective bargaining for public servants and that only public sector workers governed by the Labour Code could engage in collective bargaining. The Committee also noted that the 2015 amendments to the Constitution excluding the entire public sector from the scope of collective bargaining were annulled by the Constitutional Court (ruling No. 018-18-SIN-CC of 1 August 2018) and that on 4 December 2019 the Ministry of Labour issued Ministerial Order No. 373 in order to apply the Constitutional Court ruling. The Committee asked the Government to ensure the full implementation of the above-mentioned Ministerial Order in the various state institutions and urged the Government to intensify its efforts to reopen an in-depth debate with the trade unions concerned with a view to establishing an adequate collective bargaining mechanism for all categories of employees in the public sector covered by the Convention. The Committee notes the Government’s indication that although there are no regulations on collective bargaining mechanisms for public servants, since this right is conferred only on other categories of workers in the sector, the Government reiterates its undertaking to promote tripartite dialogue in this respect. With regard to the application of Ministerial Order No. 373, the Government indicates that: (i) on 6 February 2020, the Directorate for Legal Advice issued a legal opinion on the applicability of the Order; (ii) on 15 May 2020, the Ministry issued a series of circulars asking public sector entities to provide information on compliance with the Order; (iii) a total of 87 public sector institutions provided documentation and 57 of them changed the employment regime for a total of 346 public servants from the Basic Public Service Act (LOSEP) to the Labour Code; and (iv) the Ministry changed the employment regime for 242 workers. The Committee duly notes the foregoing and also observes that, according to the Government, between 2019 and August 2021, a total of 85 collective agreements were signed in the public sector. The Committee also notes that, according to PSI-Ecuador, the Basic Act on humanitarian support to combat the health crisis resulting from COVID-19 (Humanitarian Support Act), published on 22 June 2020, imposes restrictions on collective bargaining for public sector workers governed by the Labour Code. PSI-Ecuador indicates that various legal actions to declare the Act unconstitutional have been brought in this regard and that the Constitutional Court has not yet handed down any rulings. Moreover, observing that the legislation continues not to recognize the right of collective bargaining for public servants, the Committee is bound to recall once again that, under Articles 4 and 6 of the Convention, persons who are employed in the public sector but by their functions are not directly engaged in the administration of the State (employees in public enterprises, municipal employees and those in decentralized entities, public sector teachers, transport sector personnel, etc.) are covered by the Convention (see 2012 General Survey, paragraph 172) and should therefore be able to negotiate collectively their conditions of employment, including their wage conditions, since mere consultation of the unions concerned is not sufficient to meet the requirements of the Convention in this respect (see 2012 General Survey, paragraph 219). The Committee therefore urges the Government to reopen an in-depth debate with the trade union organizations concerned with a view to establishing an adequate collective bargaining mechanism for all categories of public sector employees covered by the Convention. The Committee requests the Government to provide information on the collective agreements signed with public sector workers and also information on the outcome of the legal actions to declare the Humanitarian Support Act unconstitutional.

The Committee notes with regret that it has so far been unable to observe progress with regard to the adoption of measures needed to bring the legislation into line with the Convention. The Committee notes the Government’s indication that, because of the upheaval caused by the COVID-19 pandemic, it is currently giving priority to an Opportunities Bill, which incorporates the different views of the stakeholders in the labour and social spheres and through which the Government is endeavouring to stimulate and revitalize the labour market. While taking due note of these indications, the Committee recalls the fundamental importance of ensuring the full application of the Convention to tackle the consequences of the pandemic and urges the Government to make the necessary efforts to adopt specific measures in relation to the points highlighted in this comment. In this regard, the Committee notes that the Ministry of Labour, through the Directorate of Labour Organizations, expresses the intention of collaborating on any legislative initiative aimed at improving the exercise of workers’ rights. The Committee hopes that the technical assistance referred to by the Government for strengthening social dialogue is put into practice very soon and that its results enable progress with regard to the matters raised in the present comment. In this regard, the Committee hopes that any legislative reforms undertaken, in consultation with the social partners, will contribute towards ensuring observance of the rights established by the Convention.

[The Government is asked to reply in full to the present comments in 2022.]

Articles 3 and 4(2) and (3) of the Convention. Criteria for determining the minimum wage. Consultations. In its previous comments, the Committee noted the observations of the Trade Union Association of Agricultural, Banana and Rural Workers (ASTAC) and of the Ecuadorean Confederation of Unitary Class Organizations of Workers (CEDOCUT) of 2020, indicating that: (a) the National Labour and Wage Council (CNTS) has failed to arrive at consensus on the annual basic unified wage since 2016, with the result that the exhaustive consultations with the parties involved are not taken into account in determining wages, leaving the decision in the hands of the Ministry of Labour; and (b) adjustment of the minimum wage is done purely on the basis of annual inflation which means, when taken with the austerity measures envisaged as a result of the COVID-19 pandemic, that the minimum wage thus determined is inadequate to cover the basic family basket of goods. The Committee notes that, in reply to those observations, the Government indicates in its report that: (i) as in every year, tripartite meetings were held in November 2020 within the CNTS, at which the representatives of the employers and workers presented their positions and exhaustive reasoning in respect of the determination of the annual minimum wage; (ii) as consensus was not reached, competence with respect to fixing the basic unified wage lay with the Ministry of Labour, in line with the projected consumer price index, and in conformity with section 118 of the Labour Code; and (iii) the official rate of the basic unified wage for 2021 was fixed by Ministerial Order No. MDT-2020-249 of 30 November 2020, and remained unchanged since 2020.

In this regard, observing that at the moment of fixing the minimum wage for 2021, the Government only took the consumer price index into consideration, the Committee expects that in the future, so far as possible and appropriate in relation to national practice and conditions, the needs of workers and their families and economic factors will be taken into consideration, as provided under Article 3 of the Convention.

As regards the consultations held within the CNTS, the Committee wishes to refer to the comments already made in respect of the application by Ecuador of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) in relation to the membership of the CNTS. The Committee hopes that the follow-up to the abovementioned comments will result in full consultations with the representative organizations of employers and workers concerned, in conformity with Article 4(2) of the Convention.

Articles 1 and 9(1) of the Convention. National policy, penalties and application of the Convention in practice. In its previous comments, the Committee encouraged the Government to intensify its efforts to combat child labour within the context of the National Development Programme 2017-21. The Committee requested the Government to provide with its next report the municipal orders approved in the context of the orders on child labour. It also requested it to ensure that persons who employ children in violation of the law are penalized and that statistical data on labour inspection is made available.

The Committee takes due note, according to the Government’s report, of Ministerial Decision No. MDT-2018-0158 specifying the implementation of public policies, programmes and projects with a view to the progressive eradication of work by girls, boys and young persons, and Ministerial Decision No. 124 of 7 August 2019 of the Ministry of Economic and Social Inclusion (MIES) containing the technical service standard for the eradication of child labour. It also notes the 101 cooperation agreements with other bodies concluded by the MIES in 2021 with a view to implementing global coverage of the 11 350 girls, boys and young persons engaged in work, through the processes of prevention, individual follow up and restoration of their rights. The Committee also notes the interinstitutional cooperation agreement between the MIES and the Ministry of Labour with a view to the coordination, among other areas, of labour inspections, with the participation of the cantonal commissions for the protection of rights and the officers of National Police Department specialized in issues relating to girls, boys and young persons.

The Committee also notes that, in the context of the National Plan for the Elimination of Child Labour between 2017 and April 2020, some 693 labour controls and 11 017 inspections were carried out, of which 12.1 per cent were related to child labour. It further notes that 804 girls and boys engaged in child labour were referred to the cantonal systems for the protection of rights and that 84 boys and girls between the ages of 9 and 14 years engaged in child labour were identified in work in mechanics, catering, banana growing, family enterprises and general trading.

According to the various statistics provided in the Government’s report, the Committee also notes two sources of penalties applied in the context of child labour: (i) the statistics of the Single System for the Recording of Child Labour, which records a total of 67 penalties applied under section 95 of the Children and Young Persons Code relating to the presence of girls, boys and young persons in child labour, mainly between the ages of 10 and 14 years during the period 2018-21; (ii) the regional departments of labour and the public service of the towns of Portoviejo, Ambato, Quito, Cuenca, Loja, Ibarra and Guayaquil, which carried out labour inspections related to the project for the eradication of child labour. In 2019, penalties were handed down in 89 cases of child labour out of 863 inspections undertaken by the Enterprise Network for the Eradication of Child Labour, while in 2020 penalties were imposed in 17 cases of child labour out of 489 inspections and in the first half of 2021, penalties were imposed in 10 cases of child labour out of 292 inspections.

However, the Committee notes that, according to the statistics from the urban survey of employment, unemployment and underemployment carried out in 2019, a total of 310 373 children between the ages of five and 14 years were still subjected to child labour or exposed to the risk of being used for child labour. It also observes that, in its concluding observations in 2019 on the fourth periodic report of Ecuador, the Committee on Economic, Social and Cultural Rights expressed concern at the growth of the informal sector in both urban and rural areas and the lack of information on the effectiveness of the measures to combat child labour in the sector (E/C.12/ECU/CO/4, paragraph 35). The Committee therefore encourages the Government to continue its efforts to combat child labour in the context of the implementation of its programmes and projects with a view to the progressive eradication of work by girls, boys and young persons. Recalling that it is also possible to combat child labour in the informal economy through enforcement mechanisms, and particularly labour inspection, it also requests the Government to take the necessary measures to adapt and reinforce the labour inspection services and to ensure that inspectors receive appropriate training with a view to improving their capacity to detect cases of child labour. The Committee requests the Government to continue ensuring that persons who employ children in violation of the law are penalized.

Article 2(3). Age of completion of compulsory schooling. In its previous comments, the Committee requested the Government to continue its efforts to increase the school attendance rate of children under 15 years of age.

The Committee notes the interventions of the Ministry of Education for very young children through the Subsecretariat of Specialized and Inclusive Education and the National Directorate of Initial and Basic Education, which are executing the “Initial and basic education project” intended to increase the percentage of girls and boys under five years of age in programmes for very young children, while recognizing the specific socio-economic characteristics of families and communities. It also notes that this project has developed a model for support to children and young persons who are behind with their schooling with a view to catching up, so that they can be reintegrated into the education system, by eliminating or mitigating their delay and therefore preventing early school drop outs.

The Committee also notes the information provided by the Government in annex to its report on the coverage of basic initial and general education over the past four years. The Committee emphasizes that between 2017 and 2021, according to the statistics contained in annex to the Government’s report, the total number of students in basic initial and general education both fell. While noting the measures taken by the Government, the Committee requests it to continue its efforts to increase the school attendance rate of children under 15 years of age.

Article 8(2). Artistic performances. In its previous comments, the Committee once again requested the Government to provide information on the measures adopted to establish a system of individual permits for children under 15 years of age working in activities such as artistic performances, to limit the hours during which such employment or work is authorized and to prescribe the conditions of work and employment.

The Committee notes from the Government’s report that there are no regulations authorizing children under 15 years of age to work in artistic activities, but that a reform of the Labour Code could be envisaged to specify the type of work for children under 15 years of age, while safeguarding their integrity and their rights, as set out in the Constitution of the Republic of Ecuador and international human rights instruments. The Committee recalls that, in accordance with Article 8(1) of the Convention, the competent authority may allow exceptions to the minimum age for admission to employment or work of 15 years specified by Ecuador and, after consultation with the organizations of employers and workers concerned, authorize, in individual cases, participation in such activities as artistic performances. It also reminds the Government that, under the terms of Article 8(2) of the Convention, permits so granted shall limit the hours during which and prescribe the conditions in which such employment or work is allowed. The Committee therefore once again expresses the firm hope that the Government will take the necessary measures in the near future for the adoption of legislation establishing a system of individual permits for children under 15 years of age who work in activities such as artistic performances, and to limit the hours during which and prescribe the conditions in which such employment or work is allowed. It requests the Government to provide information in its next report on a potential reform of the Labour Code or on the other measures adopted.

Article 3 of the Convention. Worst forms of child labour. Clauses (a) and (b). Forced recruitment of children by armed groups and use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the Government’s reference in its report to the amendment to section 127 of the Penal Code (Official Journal 107-S of 24 December 2019), concerning persons who recruit children and young persons into armed groups, and section 172 of the Penal Code (Official Journal 107-S of 24 December 2019), concerning persons who use children for pornography in public performances.

Article 6. Programmes of action. In its previous comments, the Committee encouraged the Government to step up its efforts to adopt programmes for the elimination of child labour among street children, including those engaged in begging. It asked the Government to provide detailed information on the results achieved in the context of the National Development Plan 2013–17.

The Committee notes that one of the objectives of the Plan of Action against trafficking in persons 2019–30 (PACTA) is the elimination of child labour, hazardous work and begging, and the resolution of the situation of girls, boys and young persons on the streets. The Plan also incorporates a management model and a monitoring and evaluation system. The Committee requests the Government to provide detailed information on the results of action taken in the context of the PACTA monitoring and evaluation system for the elimination of child labour and begging among street children.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee encouraged the Government to continue its efforts to improve the education system by increasing the school attendance rate and reducing the school drop-out rate, especially at secondary level, in order to prevent the involvement of children in the worst forms of child labour.

The Committee notes the action taken by the Government in 2019–20 to keep students in the education system. This action enabled the development of skills and reinforcement of the capacity of pupils and teachers alike to progress in virtual learning environments, especially through: (i) training in science, technology, engineering, mathematics and business skills, from which a total of 2,510 technical teachers and 70,367 students of the technical baccalaureate benefited; (ii) the initiation of a total of 97,781 secondary pupils at the national level in the use of Microsoft Office 365 in the education system; and (iii) online training for a total of 146 teachers and institutional authorities in the country, focusing on interpersonal skills and business projects.

The Committee notes that in 2021 the National Directorate for the Baccalaureate, in the context of the project entitled “Reinforcing access, continuity and diplomas, with the focus on inclusion and lifespan”, implemented a service for reinforcing training for students from the first to the third year of the unified general baccalaureate, in order to support students in educational institutions who were at serious risk of dropping out. In view of the fact that education plays a key role in preventing the involvement of children in the worst forms of child labour, the Committee requests the Government to pursue its efforts to improve the functioning of the education system in the country, through measures aiming in particular at improving the school enrolment rate and reducing the drop-out rate in primary and secondary education. The Committee also requests the Government to provide detailed information and statistics on the school attendance and drop-out rates.

Clause (d). Identifying and reaching out to children at special risk. 1. Children of indigenous peoples. In its previous comments, the Committee encouraged the Government to reaffirm its commitment to working for the benefit of children of indigenous peoples by continuing to facilitate their access to the bilingual education system in order to prevent their engagement in the worst forms of child labour, as they are still the most vulnerable according to the statistics.

Noting the concerns expressed in the report of the Special Rapporteur on the rights of indigenous peoples to the United Nations Human Rights Council (A/HRC/42/37/Add.1), concerning the closure of bilingual intercultural community education centres, the Committee notes the revitalization of national languages through various government actions. One result of this is the fact that a total of 3,332 candidates passed the tests in the “I want to be a bilingual intercultural teacher” competition covering 13 out of 14 languages existing in the country. In addition, educational material and furniture have been distributed to 96 bilingual intercultural community education centres in 17 provinces. The Committee also highlights the efforts of the Bilingual Intercultural Education System Secretariat at the Ministry of Education (SESEIB) to revitalize the Atupama Sapara language and the research process to document the life cycle of ten indigenous peoples in Ecuador.

The Committee also notes the increase in the number of pupils in multicultural centres at the secondary level in 2021, namely a total of 19,355 pupils (compared with 17,753 in 2020 and 17,610 in 2019). However, it observes a drop in the number of pupils at the basic/elementary school level, namely a total of 115,195 pupils (compared with 115,371 in 2020 and 116,417 in 2019), and also a drop in the number of pupils at nursery level, namely a total of 8,762 pupils in 2021 (compared with 9,236 in 2020 and 9,440 in 2019). The Committee encourages the Government to reaffirm its commitment to the children of indigenous peoples by continuing to facilitate their access to the bilingual education system, in order to prevent their involvement in the worst forms of child labour, as they are still the most vulnerable according to the statistics.

2. Child domestic workers. In its previous comments, the Committee once again asked the Government to take effective and time-bound measures to protect children engaged in clandestine domestic work and to provide information in that regard in its next report.

The Committee notes the project of the Ministry of Labour entitled “Intersectoral strategy for the prevention of child labour and gender mainstreaming in addressing child labour”, which includes exploitation and paid or unpaid domestic work affecting girls, boys and young persons in Ecuador. The strategy’s plan of action includes: (i) the setting up of inter-institutional units for the prevention and elimination of child labour and the restoration of the rights of girls, boys and young persons; (ii) the provision of care for girls, boys and young persons engaged in work and for their families; (iii) the creation of an alert mechanism for cases involving girls, boys and young persons at risk of child labour and for detected cases of child labour; and (iv) the restoration of rights through the provision of psychological and emotional support for girls, boys and young persons involved in child labour.

The Committee also notes that, according to the Government’s report, an initiative is being evaluated and due to be approved with a view to providing a social protection service for households in situations of extreme vulnerability, in order to have a particular impact on paid or unpaid domestic work. This initiative is reportedly conducted through the collection of statistical information by the National Statistics and Census Institute (INEC) and the Ministry for Economic and Social Inclusion on the basis of information from households in situations of extreme vulnerability. The Committee requests the Government to communicate the detailed results obtained from the implementation of the “Intersectoral strategy for the prevention of child labour and gender mainstreaming in addressing child labour”, with the focus on developments in the situation of children engaged in clandestine domestic work. The Committee also requests the Government to provide INEC statistics on paid or unpaid domestic work in its next report.

Articles 3(a) and (b) and 7(1) of the Convention. Worst forms of child labour and penalties. Sale and trafficking of children and use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee duly notes the amendment to section 91 of the Basic Comprehensive Penal Code (COIP) in 2021, communicated by the Government as an appendix to its report. The amendment is concerned with the prohibition of the trafficking of persons for sexual exploitation, including forced prostitution, sex tourism and child pornography, and also for labour exploitation, including forced labour, debt bondage and child labour.

The Committee duly notes that the Government, in reply to its request to pursue efforts to ensure that the various ministries and entities responsible for monitoring the application of the COIP provisions collaborate in cases of trafficking of children, refers to: (i) the project for the elimination of child labour (PETI), which aims to prevent this practice in all its forms and encourages inter-sectoral coordination with a view to providing overall care for the victims of child labour. This collaboration includes the participation of the Ministry of Labour, the Ministry of the Interior, the Public Prosecutor, the Ministry for Economic and Social Inclusion, the Ministry of Education, the Ministry of Public Health and the Cantonal Rights Protection Councils; and (ii) the activities of the Inter-Institutional Coordinating Committee for the prevention of human trafficking and migrant smuggling and the protection of their victims; the purpose of this Committee is to supervise the application of the Human Mobility Act and monitor the issue of human trafficking, in accordance with Inter-Ministerial Decision No. 0010 of 2017. This Committee has technical working groups, in addition to the coordination team for the victims of trafficking and migrant smuggling, which includes the Technical Investigation and Justice Office, the Ministry of Foreign Affairs and Human Mobility and the Attorney-General’s Office, with a view to implementing joint actions against the trafficking of persons.

The Committee notes the action taken by the Government concerning the application of the provisions of the COIP relating to the trafficking of children: (i) 16 investigations into trafficking for sexual exploitation and one investigation into labour exploitation were conducted by the unit for the investigation of trafficking of persons and smuggling of migrants; (ii) six investigations into forced labour or other forms of labour exploitation and one investigation into the trafficking of persons, labour exploitation, servitude and child labour were conducted by the National Police Department specializing in matters relating to children and young persons (DINAPEN). The Committee requests the Government to provide detailed information on the prosecutions initiated, the convictions handed down and the penalties imposed as a result of these investigations.

Article 6. Programmes of action. Trafficking of children. In its previous comments, the Committee asked the Government to take all necessary measures to complete the process of adopting a new national plan of action to combat trafficking in persons and to provide detailed information in that regard.

The Committee notes with satisfaction Ministerial Decision No. 194 of 25 November 2019 adopting the Plan of Action against trafficking in persons 2019–30, published in Official Journal No. 349 of 14 February 2020, with details of the Plan appended to its report, including a conceptual and strategic framework, an analysis of the situation and a specific model for management, monitoring and evaluation of the actions to be taken.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour, removing them from these forms of labour and ensuring their rehabilitation and social integration. Trafficking of children. In its previous comments, the Committee asked the Government to continue its efforts to prevent the trafficking of children. It also asked the Government to provide information on the number of children removed from trafficking who have then been rehabilitated and socially integrated, disaggregated by age and gender.

The Committee notes Inter-institutional Decision No. 003 published in Official Journal special edition No. 425 of 10 March 2020, which adopts the protocol of actions to provide full care and protection for trafficking victims, incorporating a specific procedure vis-à-vis girls, boys and young persons. The Committee also notes the forthcoming interactive mapping of human trafficking and migrant smuggling by the Ministry of the Interior, supported by the International Organization for Migration (IOM) and the United Nations Office on Drugs and Crime (UNODC).

Furthermore, the Committee notes the statistical data on the trafficking of persons issued by the REGISTRATT system for the registration of victims of trafficking and migrant smuggling, which recorded 331 victims of trafficking, including 103 children under the age of 17 years, between 2017 and May 2021. It also notes the competencies of the Ministry for Economic and Social Inclusion with regard to providing care for girls, boys and young persons who are trafficking victims. The institutional care service caters for young persons between 12 and 17 years of age in two specialist centres, Casa Linda and Casa El Nido of the Alas de Colibrí foundation. A family reintegration programme catered for 19 girls and young persons in 2020 and 12 girls and young persons in 2019.

The Committee also notes the measures taken in 2019 in the context of the Human Mobility Act to direct the population in situations of human mobility towards social and legal services through the “host towns” project. This project, which exists in 14 locations, focuses on the protection of children, identifying and providing support for girls, boys and young persons who are the victims of violence, trafficking or exploitation. The Committee requests the Government to continue its efforts to combat the trafficking of children and to continue taking steps to protect child victims of trafficking. The Committee also requests the Government to provide information on the number of children, disaggregated by gender and age, who have been removed from trafficking and then rehabilitated and socially integrated.

Article 8. International cooperation and assistance. Trafficking of children. In its previous comments, the Committee asked the Government to indicate whether the exchange of information with Peru carried out within the framework of the agreement concluded in 2016 has provided information on the identification of, and penalties imposed on, perpetrators of trafficking of children and their networks. The Committee also asked the Government to continue its efforts to detect and intercept child victims of trafficking at the borders and to provide statistical data in its next report, disaggregated by gender and age, and information on the results achieved.

The Committee notes the bilateral cooperation activities between the Ministry of the Interior and Peru in 2020, aimed at prevention, investigation and victim protection in the context of human trafficking. In this regard, a number of activities have been implemented, including the 2020-21 roadmap on the trafficking of persons covering: (i) the updating and exchange of contact points in the institutions responsible for the provision of care, protection and reintegration services and/or for the repatriation of trafficking victims; and (ii) the exchange of instruments for the care, protection, reintegration and repatriation of victims of human trafficking and migrant smuggling. Furthermore, an online meeting on experiences relating to the prevention of cases of trafficking originating from the Internet was held with the collaboration of rapporteurs from the UNODC, the IOM and the International Centre for Missing and Exploited Children (ICMEC), with the participation of officials from both countries. The Committee also notes the campaign to combat the trafficking of persons between the two countries, aimed at formulating a communication strategy for the prevention of human trafficking which has an impact on vulnerable groups.

Lastly, the Committee notes, according to the Government’s report, that since the agreement is recent and in view of the situation arising from the COVID-19 pandemic, it has not been possible to provide additional data on the results of the action taken since 2020. The Committee requests the Government to continue its efforts to detect and intercept child victims of trafficking at the borders and to provide statistical data in its next report, disaggregated by gender and age, and information on the results achieved.

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

Comments adopted by the CEACR: Ecuador

Adopted by the CEACR in 2022

C029 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C105 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2021

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C088 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C131 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Comments adopted by the CEACR: Ecuador

Display the list by:

Adopted by the CEACR in 2022

C029 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

C105 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2021

C087 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C088 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C095 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2021, published 110th ILC session (2022)

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Application of the Convention in the private sector

Application of the Convention in the public sector

C131 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C138 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C182 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)